And in Re Requested Extradition of Smyth Daniel T

Cornell International Law Journal Volume 30 Article 8 Issue 2 1997

The omprC omise between Outrage and Compassion: Article 3(a) and In re Requested Extradition of Smyth Daniel T. Kiely Jr.

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Recommended Citation Kiely, Daniel T. Jr. (1997) "The omprC omise between Outrage and Compassion: Article 3(a) and In re Requested Extradition of Smyth," Cornell International Law Journal: Vol. 30: Iss. 2, Article 8. Available at: http://scholarship.law.cornell.edu/cilj/vol30/iss2/8

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Daniel T. Kiely, Jr.*

Introduction The 1986 ratification of a supplementary extradition treaty between the United States and the United Kingdom' marked a significant departure from established extradition law in the United States. The Supplementary Treaty was promulgated in response to four federal court decisions in the early 1980s refusing to extradite members of the Provisional Irish Republi- can Army (P.I.R.A.) to the United Kingdom. 2 In each case, the P.I.R.A. fugitives were deemed to be non-extraditable after the court concluded that the "4political offense" exception barred their extradition.3 This exception is codified in all bilateral extradition treaties to which the United States is a party and grants U.S. courts the power to refuse a foreign nation's request for extradition if the court finds that the offense committed by the potential extraditee was political in nature.4 The 1985 Supplementary Treaty between the United States and Great Britain significantly narrowed the political offense exception by explicitly excluding most violent crimes from

* J.D., Cornell Law School, 1997; B.A., College of the Holy Cross, 1994. This Note is dedicated to my parents, Daniel and Ellen Kiely, and to the memory of my uncle, Tim Kiely. 1. Supplementary Treaty Concerning the Extradition Treaty Between the Govern- ment of the Unites States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 25, 1985 [hereinafter Supplementary Treaty]. The text of this treaty can be found at S. ExEc. REP. No. 17, 99th Cong., 2d Sess. 15-17 (1986). 2. See In re Mackin, 668 F.2d 122, 125 (2d Cir. 1981); In re Doherty, 599 F. Supp. 270, 277 (S.D. N.Y. 1984), affid, 943 F.2d 204 (2d Cir. 1991), rev'd, 502 U.S. 314 (1992); In re McMullen, Mag. No. 3-78-1099 MG, slip op. (N.D. Cal. May 11, 1979); Quinn v. Robinson, No. C-82-6688 RPA, slip op. (N.D. Cal. Oct. 3, 1983), rev'd, 783 F.2d 776, 793 (9th Cir. 1986). 3. Extradition Treaty Between the Government of the United States of America and the Government of Great Britain and Northern Ireland, Oct. 21, 1976, art. V(1)(c)(i), U.S.-U.K, 28 U.S.T. 227 [hereinafter Extradition Treaty]. This provision of the treaty states that extradition "shall not be granted" in cases where the offense "is regarded by the requested party as one of a political character." 4. See John Patrick Groarke, Comment, Revolutionaries Beware: The Erosion of the Political Offense Exception Under the 1986 United States-United Kingdom Supplementary Extradition Treaty, 136 U. PA. L. Rev. 1515, 1519 (1988). 30 Comtnt. Ir't. J. 587 (1997) Cornell International Law Journal Vol. 30

the definition of "political crime. ' 5 Although the Supplementary Treaty effectively denies P.I.R.A. fugitives a defense predicated upon the political offense exception, it does provide for a new, more narrow, defense to extradition. This new defense is codified in article 3(a) of the Supplementary Treaty.6 Article 3(a) provides potential extraditees with a defense to extradition based upon racial, religious, political, or ethnic discrimination. Under article 3(a), a U.S. court may deny extradition in two situations: (1) if the request for extradition is motivated by a subjective desire to punish the person sought on account of his or her race, religion, nationality, or political opinions; or (2) in situations where the person sought would in fact be prejudiced at his or her trial, or prejudiced after his or her trial on account of the forbidden 7 factors. Until 1994, no P.I.R.A. fugitive had asserted an article 3(a) defense to extradition. In In re Requested Extradition of Smyth, the U.S. District Court for the Northern District of California held that James Smyth, a suspected P.I.R.A. fugitive who had escaped from prison in Northern Ireland after serving five years of a twenty-year sentence for attempted murder, asserted a meritorious article 3(a) defense to extradition. 8 The court held that Smyth had established this claim by showing that he would be punished both because of his religion and because of his political opinions upon his

5. Article 1 of the Treaty states: For the purposes of the Extradition Treaty, none of the following shall be regarded as an offense of a political character: (a) an offense for which both Contracting Parties have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit his case to their competent authorities for decision as to prosecution; (b) murder, voluntary manslaughter, and assault causing grievous bodily harm; (c) kidnapping, abduction, or serious unlawful detention, including taking a hostage; (d) an offense involving the use of a bomb, grenade, rocket, firearm, letter or parcel bomb, or any incendiary device if this use endangers any person; (e)an attempt to commit any of the foregoing offenses or participation as an accomplice of a person who commits or attempts to commit such an offense. Supplementary Treaty, supra note 1, at 15. 6. Article 3(a) provides: Notwithstanding any other provision of this Supplementary Treaty, extradition shall not occur if the person sought establishes to the satisfaction of the competent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions, or that he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his liberty by reason of his race, religion, nationality or political opinions. Supplementary Treaty, supra note 1, at 16. 7. See In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1150 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). The Smyth court noted that Article 3(a) granted two distinct powers: (1) the court may inquire into whether the requesting nation has "trumped up" charges against the fugitive; and (2) the court may inquire into whether the fugitive would be unfairly treated at his trial or punished, detained, or restricted in his liberty because of his race, religion, nationality, or political opinion. Id. 8. Id. at 1151. 1997 Compromise Between Outrage and Compassion

return to prison in Northern Ireland and upon his subsequent release into the general populationY Judge Barbara Caulfield arrived at this conclusion by relying upon presumptions awarded to James Smyth that were not rebutted by Great Britain and by using an analogous immigration provision called "withholding of deportation" to interpret article 3(a). 10 The U.S. Court of Appeals for the Ninth Circuit reversed the Northern District's findings and ordered the Northern District to certify the extradition request.11 In addition to holding that the presumptions awarded to also rejected Judge James Smyth were inappropriate, the Ninth Circuit 2 Caulfield's use of the withholding of deportation statute and regulations.' The Supreme Court implicitly upheld the decision of the Ninth Circuit by 13 refusing to hear Smyth's appeal. This Note explores the Smyth case in an effort to determine the proper scope of article 3(a) of the Supplementary Treaty. This Note does not seek to determine the relative merits of Mr. Smyth's article 3(a) claim. Rather, it critiques the Ninth Circuit's interpretation of that provision. Part I discusses the historical roots of the Anglo-Irish relationship and the causes of the current conflict. Part I also discusses the judicial system that has been established in Northern Ireland in response to the political unrest there. Part II examines the 1986 Supplementary Treaty and its predecessor, the 1977 Treaty. Part III looks at the background of James Smyth and the circumstances surrounding his trial and appeals in U.S. federal courts. Finally, part IV analyzes the holdings of the federal courts that heard Smyth and offers suggestions regarding the future interpretation and application of article 3(a).

I. Background A. History of the Conflict and the Beginning of British Rule Irish historian Robert Kee once noted that when trouble began to escalate in Northern Ireland in the 1960s it took many people by surprise. Many people throughout the world thought that these problems signalled the beginning of unrest. However, these problems were not a beginning, but 4 rather were "the latest events in an age old story which began long ago."' To understand the violence that permeates Northern Ireland today it is necessary to understand the roots of the Anglo-Irish conflict. The Anglo- Irish saga dates back to the Norman Conquest of Ireland in 1170 when 15 King Henry II succeeded in capturing Dublin and the surrounding area. For the next 800 years, London exerted great influence over the lives of the

9. Id. 10. Id. at 1152. 11. In re Requested Extradition of Smyth, 61 F.3d 711, 722 (9th Cir. 1995), cert. denied, 116 S. Ct. 2258 (1996). 12. Id. at 720. 13. Smyth v. United States, 116 S.Ct. 2258 (1996). 14. ROBERT KEE, IRAND: A HISTORY 15 (1982). 15. See T.W. MOODY & F.X. MARTIN, THE COURSE OF IRISH HISTORY (1987) (offering a comprehensive history of Ireland from prehistoric times through 1982). Cornell InternationalLaw Journal Vol. 30

Irish people.1 6 The relationship that developed was not an amicable one, despite its longevity. The generations have been witness to countless Irish- men employing violence in vain attempts to recapture control of the 1 7 island.

B. Independence and Partition The periodic insurrections which punctuated the English domination of Ireland were typically no more than sporadic expressions of Irish anger. These armed rebellions never posed a serious threat to British rule. How- ever, these attempts were slightly more successful in the years following the Great Famine. 18 In 1848, at the height of the famine's devastation, a small group of men attempted to incite an armed rebellion against British rule.19 Although the uprising amounted to little more than a glorified riot, the spirit of this revolt inspired others and led to the creation of the Fenian movement, a movement that eventually culminated in the establishment of the Irish Free State. Despite increasing support among the population, the citizenry was not completely unified in its desire for independence from England. There were deep differences of opinion between the typically wealthy Protestant minority who supported the union with England and the typically poor Catholic majority who felt oppressed by British control.20 The socio-economic division, more so than the religious division, was largely responsible for this difference of opinion. The wealthy upper-class enjoyed the stability of British control and liked to think of themselves as British citizens. Con- versely, the peasants and lower class felt both socially and economically 2 1 oppressed by the British government. The establishment of the Irish Republican Brotherhood, or Fenian organization, on St. Patrick's Day of 1858, represented the rising desire for independence. 22 The Fenians, who drew their numbers primarily from working class Catholics, believed that armed confrontation was the only way in which Ireland could assert its independence from Britain. 23 The Fenians had a large base of support among Irish persons both in Ireland and overseas. 24 In addition to the Irish who survived the Great Famine, the Fenians enlisted the aid of Irish migr~s in the United States and elsewhere

16. See CONOR C. O'BRIEN, THE SIEGE: THE SAGA OF ISRAML AND ZIONISM 329 (1986) (noting that medieval British rule wrought little oppression upon the Irish. It was not until the 16th century that the Irish were oppressed by the British). 17. See KEE, supra note 14; MOODY & MARTIN, supra note 15. 18. The Great Famine, 1845-49, was one of the most horrible experiences in the history of Ireland. During the 5 year potato blight almost 1 million people died from starvation and disease, and another 1.5 million were forced to emigrate. KEE, supra note 14, at 77-103. 19. Id. at 104-06. 20. See MOODY & MARTIN, supra note 15, at 276. 21. See KEE, supra note 14, at 137-51. 22. See F.S.L. LYONS, IRELAND SINCE THE FAMINE 114 (1971);JosEPH MARONEY CURRAN, THE BIRTH OF THE IRISH FREE STATE 1921-1923, at 3-4 (1980); KEE, supra note 14, at 107. 23. See MOODY & MARTIN, supra note 15, at 278. 24. Id. at 279. 1997 Compromise Between Outrage and Compassion who had left during the famine. In 1867, the Fenians struck Like the numerous uprisings that had occurred since 1170, this insurrection posed no serious threat to British control. Nevertheless, the 1867 uprising did have a lasting impact on the people of Ireland and the way in which they viewed the Anglo-Irish relationship. Although soundly defeated in 1867, the Fenians continued to work for independence. Their efforts were a sub- stantial cause of the Anglo-Irish War which ultimately led to the creation of the Irish Free State. In 1916, when England and the rest of the world were focused on mainland Europe and the devastation of World War I, the Fenians struck again.25 On Easter morning, almost 1600 Irishmen attacked various Brit- ish targets in Dublin, prompting a swift and severe reaction by the occupy- ing British military.26 The fighting continued for almost a week before the heavily outnumbered Fenian forces finally surrendered. Many historians believe that this rebellion would likely have warranted no more than a historical footnote if it were not for the British government's retaliation against 27 the rebels. The mounting desire for independence which followed the Easter Rebellion eventually manifested itself in the Anglo-Irish War of 1919-1921. In December 1920, in response to the war, the British government formally and unilaterally partitioned Ireland. The British government, through the Government of Ireland Act ("GIA), established two Irish parliaments. One parliament was established in the North to govern six of the nine counties in the province of Ulster. The other parliament was established to govern the remaining twenty-six counties in Ireland. The six northern counties, comprised primarily of Protestant loyalists, quickly established a parliament, but the southern counties continued to fight for their 8 independence. 2 The guerrilla tactics of the rebel forces eventually drove the English to negotiate. In December of 1921 the British government invited the rebel leaders to London to negotiate a cease-fire. After extensive negotiations, the Irish representatives were given an ultimatim: either sign an agreement

25. See F.S.L. LYONs, CULTuRE AN ADANARcHY N IRAND 1890-1939, at 85-86 (1979) (noting that the principal leaders of the Easter Rebellion saw themselves as heirs to the Fenian tradition); CuRAN, supra note 22, at 10-13. 26. See CuRRAN, supra note 22, at 10-13 (providing an excellent overview of the Easter Rebellion). 27. See JJ. LEE, IRELAND, 1912-1985: Porncs AND Socmxar 28-38 (1989). Lee notes that it is widely believed that the majority of the Irish population were, at first, opposed to the Easter Rebellion but that after the mass executions of the unsuccessful rebels, public opinion turned against the British. According to Lee, this popular understanding of the Easter Rebellion has always been accepted as true but rarely subjected to academic scrutiny. Lee notes the fact that many rumors circulated that may account for the origi- nal antipathy toward the rebellion. Many people believed that the rebels were part of a communist plot to invade Ireland or a precursor to a German invasion. He asserts that public opinion may have been shaped more by these widely disseminated rumors rather than any real antipathy towards the attempt to break free from English control. Id. 28. Id. at 43. Cornell InternationalLaw Journal Vol. 30 or be attacked by the full force of the British military in three days. 29 A treaty, commonly known as "The Treaty," was subsequently signed in early December of 1921. It granted internal sovereignty to the twenty-six southern counties in return for their acceptance of partition of the six northern counties. As a result of The Treaty, the Irish Free State was created. The nation, comprised of the twenty-six counties, was and remains overwhelm- ingly Catholic. The six northern counties, composed primarily of Protes- tants, opted out of the Irish Free State. They chose to remain a part of the United Kingdom and were allowed to maintain their own local 0 government. 3 The Treaty proved unacceptable to many Irish rebels who insisted on a united republic. This group, known as "republicans," rejected the treaty and those fellow Irishmen who had embraced it. Ultimately, this led to the civil war of 1922-1923, in which the republicans were defeated. 31 In 1925, the Irish Free State, Northern Ireland, and England signed a boundary agreement that settled a dispute over the precise location of the boundary between Northern Ireland and the Irish Free State, s6lidifying the partition 32 of north and south that is still in place today.

C. Reawakening of the Troubles in the North The partition of the island did little to quell Irish unrest and the continuing calls for unification and an end to British domination. From the very out- set, violence erupted in Northern Ireland between the Protestant majority and the Catholic minority. 33 Commentators have noted that the democratic system established in Northern Ireland was patterned on the West- minster style of democracy, but was never practiced in the same manner. 34 In 1922, the British attempted to calm the situation when they passed the Special Powers Act.35 The Act imposed severe restrictions upon the personal liberties of citizens living in Northern Ireland. The Act did not on its face single out Catholics for persecution, but it was applied in a discrimina- 6 tory manner.3

29. Id. at 50. 30. See MOODY & MARTIN, supra note 15, at 311-12. 31. See KEE, supra note 14, at 191. 32. See MOODY & MARTIN, supra note 15, at 315; KEE, supra note 14, at 202. 33. See KEE, supra note 14, at 226 (the riots of 1922 in Belfast resulted in 232 deaths, mostly of Catholics, and encouraged thousands more to leave their homes and migrate to the Republic of Ireland). 34. See DERMOT PJ. WALSH, THE USE AND ABUSE OF EMERGENCY LEGISLATION IN NORTH. ERN IRELAND 8 (1983) (noting that the polarization between the Catholics and Protes- tants ensured that the Protestants would use their majority position to reinforce their power in Northern Ireland). 35. See id. at 23-24 (noting that the Special Powers Act invested the security forces with unprecedented powers ostensibly for the purpose of maintaining order); LAwYeRs COMMITrEE FOR HuMAN RIGHTS, HUMAN RIGHTS AND LEGAL DEFENSE IN NORTHERN IRELAND: THE INTIMIDATION OF DEFENSE LAWYERS 17-18 (1993) [hereinafter LAwYERs COMMITTEE REPORT]. 36. See WALSH, supra note 34, at 23-24. 1997 Compromise Between Outrage and Compassion

Over the next forty years, polarization along religious lines ensured that Northern Ireland remained in turmoil. The situation was exacerbated complained bitterly about what when the Catholic minority in the North 37 they perceived as discrimination in employment, housing, and voting. Their protests led to the creation in 1967 of the Northern Ireland Civil Rights Association (NICRA), an organization patterned after the organizations that formed during the U.S. civil rights movement. 38 NICRA organized peaceful marches and demonstrations that were designed mainly to protest the discriminatory treatment of Catholics in the North, not to protest the existence of Northern Ireland. Extremist Protestants and the police responded to NICRA's demonstrations with force, thus propelling the North into greater disorder. In response, the North requested the presence of British troops in an attempt to restore some semblance of order.39 At of troops as a victory against first, many Catholics regarded the arrival 40 Protestant aggression and as a source of protection from the local police. This belief quickly dissipated as Catholic protesters and British troops clashed in the major cities of Belfast and Derry. 41 As a result of these slow pace of reform, and the ineffectiveness of NICRA, the mili- clashes, the 42 tant Irish Republican Army reemerged. Since the initial partition of Ireland, the I.R.A. had sought the unification of Ireland through violent means. In 1962, however, it abandoned violence as a means of achieving its goals, and shifted its focus to political and social activities. 43 However, the escalating violence in Northern Ire- land during the 1960s caused a split in the traditional I.R.A. Many members sought a return to their violent roots, while other members championed the continued use of social and political outreach. In 1970, the I.R.A split into two factions: the "official" I.R.A, which continued to advocate social and political solutions to the turmoil; and the "provisional" I.LA (P.I.R.A.) which supported the use of force as a means of achieving reunification. 44 The P.I.RA. immediately reverted to the violent tactics that the official I.R.A. had disavowed in 1962, targeting soldiers, police officers, and prominent Protestant extremists in Northern Ireland for attack. Later, in an effort to exert greater pressure on England, the P.I.R.A. began to conduct many of its violent activities within England. The emer- gence of the P.I.R.A. severely limited the prospects for a peaceful resolution to the problems of discrimination and oppression in Northern Ireland. In 1972, the P.I.R.A. increased the number of attacks on British targets. The British military responded by increasing its own activities. On January 31,

37. See LAWYERS COMmWIEE REPORT, supra note 35, at 14-15; WALSH, supra note 34, at 8-9. 38. See KEE, supra note 14, at 235; MoODY & MARTIN, supra note 15, at 344. 39. See MOODY & MARTIN, supra note 15, at 344. 40. See id. 41. See id. at 346. 42. See M.LR. SMrrH, FIGHTING FOR IRELAND? THE MILITARY STRATEGY OF THE IRISH REPUBLICAN MovEmErr 72-87 (1995). 43. See id. at 87; LEE, supra note 27, at 432-33. 44. See SMm!, supra note 42, at 91. Cornell InternationalLaw Journal Vol. 30 in one of the most horrible confrontations of the conflict, commonly known as "Bloody Sunday," a British parachute regiment shot and killed thirteen unarmed demonstrators taking part.in a banned, but peaceful, civil rights march in Londonderry. 45 The P.I.R.A. responded with equally appalling attacks. 46 In an attempt to quell the rapidly escalating violence, the British government suspended Northern Ireland's parliament and insti- 47 tuted direct rule from London. In 1973, the Irish and British governments made a final attempt to defuse the situation. That final attempt was embodied in the Sunningdale Agreement of December 9, 1973. The Agreement sought a diplomatic and political resolution of the troubles in the North, calling for greater Catholic participation in the governance of the North. In it, the Irish government recognized, for the first time, Northern Ireland's status as part of the United Kingdom. In return, the British government promised to support reunification if a majority of Northern Ireland's population voted for reunification. 48 Catholics realized that increased political participation could inevitably eliminate the discrimination that had racked Northern Ire- land since the partition. The Protestant community in Northern Ireland staunchly opposed the Sunningdale Agreement because it facilitated greater political and economic participation on the part of the Catholic minority, effectively diminishing their power in Northern Ireland.49 In 1974, a general unionist strike, organized in opposition to the accord, effectively ended any chance that the Agreement would resolve Northern Ireland's long-standing political problems. Since that strike, very little has changed in Northern Ireland. Violence continues to plague the region. Since British troops were first sent to Northern Ireland in 1969, the political violence has claimed the lives of over 3,000 people out of a population of approximately 1,500,000.50 In addition, over 35,000 people, the majority of whom have been civilians, have been injured. Over the same time period, over 15,000 people have been charged with committing terrorist offenses." In a vain attempt to restore order, the British government has deployed thousands of troops. In 1994, the number of British troops serving in Northern Ireland exceeded 24,000.52

45. See KEE, supra note 14, at 239; SMrrH, supra note 42, at 89. 46. See SMrrH, supra note 42, at 109-10. Among the responses was "Bloody Friday" when P.I.R.A. members planted twenty-two bombs in the center of Belfast. All twenty- two bombs exploded within an hour, leading to mass confusion, widespread terror, and nine deaths. 47. See Kee, supra note 14, at 239; MOODY & MARTIN, supra note 15, at 347. 48. See BRIGID HADFIELD, THE CoNsTITuTiON OF NORTHERN IRELAND 110-17 (1989). 49. See James T. Kelly, The Empire Strikes Back: The Taking of Joe Doherty, 61 FORD- Hiu L REV. 317, 325-26 (1992). 50. In Re Requested Extradition of Smyth, 863 F. Supp. 1137, 1140 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 51. Id. 52. Id. at 1141. 1997 Compromise Between Outrage and Compassion

D. Northern Ireland Today On December 15, 1993, British Prime MinisterJohn Major and Irish Prime Minister Albert Reynolds unveiled the Downing Street Declaration, which excited both great hope and great apprehension about the possibility of a peaceful resolution to the problems in Northern Ireland.' 3 The Declara- tion enunciated certain principles that were supposed to pave the way for peace talks and a possible amicable resolution to the violence.5 4 Some commentators have asserted that the essence of the Declaration was a quid pro quo: if the P.I.R.A. renounces violence, then Sinn Fein, the political arm of the P.I.R.A., would be permitted to participate in negotiations concerning the future of Northern Ireland.55 On August 31, 1994 the P.I.R.A. promised "a complete cessation of military operations."' 6 This action was regarded as "the most hopeful step toward peace in Northern Ireland [in] 7 ... twenty-five years."' Despite this great advance towards peace, many in Northern Ireland were skeptical, and even fearful, that the violence that had raged for the past twenty-five years would not quickly abate.' 8 Although the P.I.R.A. had committed itself to a cease-fire, the Protestant militant groups had not.' 9 This was especially disconcerting to the Catholic population because Prot- estant paramilitary groups had, in recent years, become just as powerful, and just as vicious, as the P.I.LRA.60 The early days of the cease-fire proved to be free from violence, and slowly some of the initial fears and skepticism began to subside.61 The prospects for peace increased when the Combined Loyalist Military Command, an organization that speaks on behalf of the Protestant paramilitary organizations, released a statement that suggested that they too were receptive to the idea of abandoning violence.6 2 The Prot- estant militants followed these peace overtures with their own cease-fire on October 14, 1994.63 This was a momentous occasion in that it marked the first time "that the heavily armed paramiitaries on both sides of the reli-

53. See SMrrH, supra note 42, at 206-11. 54. See Main Points of Anglo-Irish Declaration on Northern Ireland, AGENCE FRANcE PRmss, Dec. 15, 1993, News. 55. SeeJohn Darnton, Turning Point: The I.R.A. Cease-Fire,N.Y. TIMES, Sept. 5, 1994, at Al. 56. Cease-FireIn Northern Ireland. IR.A's 'Cessation' of Fighting,N.Y. TruAs, Sept. 1, 1994, at A12. 57. John Darnton, End of 'the Troubles'?, N.Y. TmEs, Sept. 1, 1994, at Al. 58. See William E. Schmidt, Day I of I.R.A's Cease-Fire: Hopes Tinged by Skepticism, N.Y. TimEs, Sept. 2, 1994, at Al. 59. See id.; Darnton, supra note 55. 60. See Schmidt, supranote 58, at A10 (noting that Protestant militias, like the Ulster Freedom Fighters and the Ulster Volunteers, "have become the equal of the I.RLA. in mayhem and murder."). 61. See William E. Schmidt, In Belfast, Prosperity Eases Catholic Nationalism, N.Y. TIMEs, Sept. 6, 1994, at A3 (noting that the fact that the cease-fire seemed to hold led to "cautious hope" in some areas of Belfast). 62. SeeJohn Darnton, ProtestantMilitants Weighing Response to ILRA. Cease-Fire,N.Y. TIMES, Sept. 9, 1994, at A2. 63. SeeJohn Darnton, Militant ProtestantsIn Truce, Lifting Peace Hopes In Ulster,N.Y. TwMu, Oct. 14, 1994, at Al. 596 Cornell International Law Journal Vol. 30

gious divide... [had stopped] fighting, not for short-term tactical reasons 64 but to bring about negotiations and a democratic solution." In the weeks following the cease-fire, there were more signs that negotiations and diplomacy would accomplish what twenty-five years of bombs and bullets had failed to achieve. English Prime Minister John Major accepted the P.I.R.A. truce as "genuine"65 and as a result, opened an official dialogue with Sinn Fein leader Gerry Adams.66 Although the British Government categorized this dialogue with Sinn Fein as "talks about talks," rather than as full negotiations, the fact that the British government and the political arm of the P.I.RIA. would, for the first time, openly discuss the prospects of peace was a tremendous advance towards a peaceful resolution of the troubles.67 After opening the dialogue and acknowledging the legitimacy of the cease-fire, the British government announced that it would end daytime army patrols in Belfast, the capital of Northern Ire- land.68 The British government also made small reductions of troops sta- tioned in Northern Ireland 69 and granted early release to several incarcerated P.I.R.A. members. 70 Despite these encouraging signs, the peace process moved forward very slowly and at times seemed to be on the verge of collapse. In July 1995, civil unrest reached its highest levels since the P.I.R.A. had declared a cease-fire ten months earlier. 71 Violent protests, which lasted for two nights, erupted in Catholic areas of Belfast after the release of a British soldier who had been sentenced to life in prison for the 1990 murder of a seventeen year old Catholic girl.72 The riots, punctuated by vandalism, firebombing of cars, and "general disorder," led to thirty-two arrests but no serious injuries. Significantly, the P.I.R.A. did not abandon the cease- fire.73 One week later, Protestant groups in Ulster rioted after the police refused to allow them to march through a Roman Catholic area to com- memorate the Battle of the Boyne, the 1690 event that established Protes- 74 tant domination of Northern Ireland. The fear that the July riots might derail the peace process proved to be unfounded. However, the peace efforts had slowed considerably. The pri-

64. Id. 65. John Darnton, Major Accepts I.R.A.'s Truce as Authentic, N.Y. TIMES, Oct. 22, 1994, at Al. 66. See John Darnton, Britain and the I.R.A. Group to Begin Talks in Northern Ireland, N.Y. TIMES, Dec. 2, 1994, at A12. 67. Id. 68. SeeJames F. Clarity, Britain To End Daytime Patrols in Belfast, N.Y. TiME,Jan. 13, 1995, at A5. 69. See James F. Clarity, Britain to Pull 400 More Troops Out of Ulster, N.Y. TIMES, Apr. 13, 1995, at A5. 70. See Richard W. Stevenson, Britain Offers to Cut Terms for 400 Irish Convicts, N.Y. TM as, Aug. 26, 1995, at A4. 71. See James F. Clarity, Violence Erupts In Ulster Cities, N.Y. TIMES, July 4, 1995, at Al. 72. Id. 73. Id. 74. See James F. Clarity, ProtestantsFight Police in Ulster, N.Y. TIMES, July 11, 1995, at All. 1997 Compromise Between Outrage and Compassion mary reason for this was the refusal of both sides to compromise on the question of whether disarmament of the P.I.R.A. should be a precursor to "all-party" talks. 75 The issue of "decommissioning" all of the P.I.R.A.'s weapons as a precondition to beginning negotiations ground the peace process to a halt. The British government insisted that the P.I.R.A. turn over all of its weapons before beginning negotiations.76 Sinn Fein asserted that it was "backward thinking... to expect weapons to be surrendered or taken 77 out of operation before-instead of after-some sort of overall accord." This single issue threatened to destroy the P.I.P.A. cease-fire and return Northern Ireland to the state of war that it had known since 1970. U.S. President Clinton intervened in November of 1995 to revive the ailing peace process. His visit to Ireland, England, and Northern Ireland, the first U.S. Presidential visit to Northern Ireland, seemed to reinvigorate the peace process.78 Furthermore, his trip to the area "concentrated the mind[s]" of the concerned parties and led to the formation of an international panel, led by former United States Senator George Mitchell, to fashion a compromise between Sinn Fein and the British government. 79 On January 23, 1996 the international panel recommended to Britain that it drop its demand that the P.I.R.A. disarm before Sinn Fein could participate in all- party peace talks.80 John Major refused to accept the panel's recommenda- tion.81 Instead, he proposed that Northern Ireland should call elections to elect members of an assembly that would serve as a "negotiating forum."82 After Major refused to drop his demand for decommissioning of weapons, it became apparent that P.I.RLA. resolve to maintain the eighteen-month cease-fire, which had been critical to the peace process, was waning.83 At 7:01 P.M. on February 9, 1996, the P..R.A. abandoned the eighteen- month cease-fire by detonating a powerful bomb in the financial district of East London. The blast killed two people, injured 100 more, and caused more than $100 million worth of damage.8 4 Approximately one hour before the explosion, an Irish radio station received a statement announc- ing that "the complete cessation of military operations will end at 6:00 P.M." because "selfish party[,] political and sectional interests in the

75. See James F. Clarity, Gerry Adams Discusses LIRA Arms, N.Y. TIMEs, Sept. 10, 1995, at A9. 76. See John Darnton, Ulster Danger Point; Dublin Cancels Key Meeting with London Over British Demand that I.R.A. Disarm, N.Y. TIMES, Sept. 11, 1995, at A6. 77. Id. 78. See R.W. Apple Jr., On A Day of Peace in Belfast, Faithsjoin to Cheer Clinton, N.Y. TIMES, Dec. 1, 1995, at Al. 79. See A Break in the Irish Impasse, N.Y. TIMs, Nov. 30, 1995, at A28; James F. Clarity, NorthernIreland DisarmamentPanel Convenes, N.Y. TIMES, Dec. 17, 1995, at A25. 80. See James F. Clarity, InternationalPanel Asks Britain to Ease Terms on LIA at Talks, N.Y. TIMES, Jan. 24, 1996, at A5. 81. See James F. Clarity, British Make Offer to Sinn Fein, But It's Conditioned on Ulster Vote, N.Y. TIMES, Jan. 25, 1996, at A3. 82. Id. 83. See Kevin Cullen, Gun Issue Hinders Irish Peace Process, BOSTON GLOBE, Feb. 5, 1996, at 9. 84. See Richard W. Stevenson, Bomb Wounds 100 in London as I.R.A. Truce Is Said to End, N.Y. TIMEs, Feb. 10, 1996, at Al. Cornell International Law Journal Vol. 30

London Parliament have been placed before the rights of the people of Ire- land."8 5 In the days following the blast, it became clear that the P.I.RA. was responsible for the bombing and that the attack represented a fundamental change in the P.I.R.A.'s policy.86 On February 15, 1996, the P.I.R.A. placed another bomb in London.8 7 Although the anti-terrorist unit of the London police force defused the bomb, commentators believe that its placement was a dear signal that the earlier explosion in East London was not intended as an isolated incident, but rather highlighted the fact that "the P.I.R.A. [was] prepared to return to its policy of sustained terrorist attacks in London."88 Since February 1996, the P.I.R.A. has resumed its use of violence. With the return of P.I.R.A. violence, many in Northern Ireland have lost hope that a lasting resolution to the troubles will be found anytime soon.8 9 In fact, the P.I.R.A.'s return to violence has led the British government to resume the old practice of having troops patrol the streets. 90 Furthermore, it seems only a matter of time before the Protestant paramilitaries put an end to their self-imposed cease-fire as well.91 When that happens, the peace talks, and the hopes of a lasting peace that they engendered, will be but a memory.

E. Justice in Northern Ireland In 1973, when the British government instituted direct rule of Northern Ireland from London, the government feared that, by itself, such direct rule over Northern Ireland would be insufficient to restore order. In an attempt to limit the spread of terrorism, the British government enacted several laws to curtail the civil liberties of its citizens living in Northern Ireland. The Northern Ireland (Emergency Provisions) Act (EPA) was first enacted in 1973 and has been amended and reenacted several times sihce.92 The Pre- vention of Terrorism (Temporary Provisions) Act (PTA) was first enacted in 1974 and has also been amended and reenacted several times over the years.93 The EPA applies only to Northern Ireland, while the PTA applies throughout the United Kingdom. 94

85. Id. 86. See Richard W. Stevenson, I.R.A. Issues Claim of Responsibilityfor London Bomb, N.Y. TIMEs, Feb. 11, 1996, at Al. 87. See Sarah Lyall, I.R.A. Bomb Destroyed in Central London, N.Y. TIMES, Feb. 16, 1996, at A6. 88. Id. 89. See Ulster's Battered Peace, N.Y. TIMEs, July 16, 1996, at A16. 90. See James F. Clarity, Troops Patrol Belfast Again, Raising the Tension, N.Y. TIMES, June 22, 1996, at A4. 91. See James F. Clarity, Belfast Journal; "Like the Bad Old Days" As Fright Revisits Ulster, N.Y. TIMES, Jan. 13, 1997, at A4. 92. Northern Ireland (Emergency Provisions) Act, 1991, ch. 24 [hereinafter EPA]. The first version of the EPA was enacted in 1973. Northern Ireland (Emergency Provi- sions) Act, 1973, ch. 53. 93. Prevention of Terrorism (Temporary Provisions) Act, 1989, ch. 4. 94. See EPA, supra note 92. 1997 Compromise Between Outrage and Compassion

1. Restrictions on Personal Liberty

The EPA and the PTA both permit significant restrictions and abridgments of personal liberty before and after an individual is or has been charged with a crime. In theory, the EPA and PTA, by their terms, apply ta all citizens. However, some commentators have asserted that, in practice, the laws are used primarily to restrict the personal liberties of Catholic citizens only.95 Under the provisions of the EPA, any constable or British soldier "9may stop any person for so long as necessary" and demand that the individual answer "to the best of his knowledge and ability" any questions the officer asks. 96 The officer does not need reasonable suspicion of a crime to question the person. Any person who fails to stop and respond is guilty of a crime and faces imprisonment of up to six months and a fine of up to four hundred pounds. Additionally, the officer may shoot an individual who fails to stop at the command of the security forces. 97 Security personnel are also entitled, under the provisions of the EPA, to arrest, without a warrant, any person whom they suspect is committing, has committed or is about to commit a terrorist-style offense.98 To facilitate the arrest, an officer is empowered to search, without a warrant, any premises in which he believes the suspect may be hiding.99 Once arrested, the length of detention varies depending upon who arrested the suspect. Soldiers are only permitted to detain suspects for four hours, while consta- bles have the authority to detain a suspect for up to forty-eight hours. This detention can be extended for an additional five days, if necessary, for a

95. See In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1142-43 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996) (noting the disparate treatment Catholics receive in Northern Ireland at the hands of the security forces. The court highlighted the fact that Catholics are arrested and killed by security personnel in staggeringly greater numbers). 96. EPA, supra note 92, § 23. 97. See Kelly D. Talcott, Note, Questions of Justice: U.S. Courts' Powers of Inquiry Under Article 3(a) of the United States-United Kingdom Supplementary Extradition Treaty, 62 NoTRm DAME L. REv. 474, 486 (1987); R.J. Spjut, The "Official" Use of Deadly Force by the Security Forces Against Suspected Terrorists: Some Lessons From Northern Ireland, 1986 PuB. L. 38, 57-59. 98. EPA, supra note 92, § 18(1). As a point of reference, it might be useful to see how this compares to the rules in the United States governing arrests. In no way does this comparison imply that the U.S. system is the benchmark against which all other systems should be judged. Rather, the comparison highlights the fact that in some instances the American system of criminal procedure affords no more protection to individuals suspected of criminal behavior that does the system in Northern Ireland. In United States v. Watson, 423 U.S. 411 (1976), the Supreme Court held that arrest war- rants are not constitutionally required. Id. at 423. The only situation where an arrest warrant may be constitutionally required is where the police wish to enter private premises to arrest a suspect. Payton v. New York, 445 U.S. 573 (1980) (holding that the Fourth Amendment prohibits the police from making a warrantless entry into a suspect's home for the purpose of making a routine arrest). 99. EPA, supra note 92, at § 18(1). This differs from American criminal procedure in that it seems likely that an arrest warrant would be required under U.S. law before the police would be constitutionally authorized to enter a private dwelling to make an arrest. 600 Cornell International Law Journal Vol. 30

total of seven days. 100 Security personnel in Northern Ireland have often abused this broad authority by arresting and then detaining and interrogat- ing at great length many persons who are subsequently released without ever having been formally charged with a crime.10 1 Detainees who are actually accused of terrorist-style offenses under the EPA are subjected to even greater restrictions on their personal liberties while they await trial.10 2 For example, in most situations, the EPA all but ensures that a person charged with a terrorist-style offense will stand little or no chance of being released on bail prior to trial. The EPA strips magis- trates and justices of the peace of their power to grant bail in such cases. Bail is available only by application to a High Court judge.10 3 Further- more, the EPA shifts the burden of convincing the High Court judge that bail is warranted to the accused. In the United Kingdom, the burden of 10 4 proof in bail hearings is ordinarily on the prosecution. In addition to the effective denial of bail, many accused terrorists have been subjected to inhuman and degrading treatment in prison.' 05 This abuse was most profound in 1971 when security personnel employed sensory deprivation techniques developed in colonial disputes in Kenya and Malaysia to gather information about the I.R.A. 106 In 1971, the Republic of Ireland filed a complaint with the European Commission on Human Rights alleging that the interrogation techniques used by the security personnel in Northern Ireland violated article 3 of the European Convention on Human Rights.10 7 In 1978, the European Court of Human Rights found that the techniques employed constituted inhuman and degrading treatment, but

100. See id. at § 14(1); In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1141 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 101. In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1143 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996) (noting that over the years, only about 25% of those persons detained for terrorism-related interrogations are actually charged with a crime. In 1992, 1,795 persons were arrested for terrorist-related crimes, but only about 400 were charged with a crime. Of the over 1,300 persons arrested and not charged, almost 1,100 were Catholics.). 102. EPA, supra note 92, at §1. Terrorist-style offenses, called scheduled offenses, include murder, kidnapping, assault, and crimes involving weapons and explosives etc. 103. Id. § 12. 104. REPORT OF THE COMMISSION TO CONSIDER LEGAL PROCEDURES TO DEAL wITH TER- RORIST ACTVITIES IN NORTHERN IRELAND, 1972, Cmnd. Ser. 5, No. 5185 (Lord Diplock, Chairman) at 23-24 [hereinafter DIPLOCK REPORT]. 105. REPORT OF THE ENQUIRY INTO ALLEGATIONS AGAINST THE SECURITY FORCES OF PHYsi- CAL BRUTALITY ARISING OUT OF EVENTS ON THE 9TH AUGUST 1971, 1971 Cmnd. Ser. 5, No. 4823 (Chairman Sir Edmund Compton). This British government report verified allegations of sensory deprivation and other maltreatment of prisoners in Northern Ireland. 106. STEVmE GREER, SUPERGRASSES: A STUDY IN ANTI-TERRORIST LAW ENFORCEMENT IN NORTHERN IRELAND 32-33 (1995) (noting that some internees were denied food and sleep and forced to stand spread-eagled against a wall for long periods of time while radio static was played in the background). 107. European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, No. 2889, 213 U.N.T.S. 221. Article III provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." 1997 Compromise Between Outrage and Compassion

not torture.108

2. Protectionsfor the Accused in Criminal Proceedings In addition to imposing significant restrictions on personal liberties, the British government has significantly curtailed the traditional procedural protection afforded to criminal defendants. These curtailments culminated in the establishment of special courts, known as "Diplock Courts," for the prosecution of persons charged with certain scheduled offenses. 10 9 Since its introduction, the Diplock Court system has been attacked by commentators as inherently unfair and incapable of protecting the rights of the accused.110 Criticism of the Diplock system has focused on two main areas: first, the elimination of the right to a jury trial;11 and second, the admissibility of certain questionable evidence, specifically, confessions 112 and uncorroborated testimony. In the United Kingdom an accused has the right to request a jury trial.1 13 The British government abolished this right in cases involving scheduled offenses, out of the fear that juries hearing these cases would be incapable of deciding the matter in an unbiased and uninfluenced manner.1 1 4 In addition, the British government believed that the jury system should also be replaced because of the possibility of jury tampering and intimidation.1 15 The Diplock Report cited this intimidation, stating that "[a] frightened juror is a bad juror even though his own safety and that of 1 16 his family may not actually be at risk." Moreover, the Diplock Commission offered an additional ground for abolishing the right to a jury trial: jury bias premised on religious differences. 117 Specifically, the Commission focused on the manner in which criminal juries in Northern Ireland are selected.' 1 8 The Commission concluded that the selection process tends to produce a jury with a dispropor- tionate number of Protestant jurors. 119 As a result, a Protestant defendant

108. Ireland v. United Kingdom, 25 Eur. CL. H.R. (ser. A) 66-67 (1978). 109. Dn'LocK REPORT, supra note 104, at 17-19. These courts were established after a commission, led by Lord Diplock, recommended that new trial techniques were necessary to combat terrorism. 110. United States and United Kingdom Supplementary ExtraditionTreaty: Hearings on Treaty Doc. 99-8 Before the Senate Committee on Foreign Relations, 99th Cong., 1st Sess. 121-25 (1985) (testimony of Christopher H. Pyle, Department of Politics, Mount Hol- yoke College) [hereinafter Committee Hearings]. 111. S.C. GREER & A. WHrrE, ABOLISHING THE DiPLoCK COURTS 78-80 (1986). 112. Id. at 16; Walsh supra note 34, at 46-53. 113. See BRICE DICKSON, THE LEGAL Sysrm IN NORTHERN IRELAND 98 (1989) (noting that in all criminal cases heard in Northern Ireland's Crown Court there will be a jury of twelve persons, except when the defendant is charged with a scheduled offense); GREE, supra note 106, at 37. 114. DipLOcK REPORT, supra note 104, at 17-18. 115. Id. § 36. See also id. § 17 (Diplock Commission describes the effects of IRA intimidation upon the government's prosecution of suspected terrorists). 116. Id. § 36. 117. Id. § 36. 118. Id. 119. Id. § 36. Cornell InternationalLaw Journal Vol. 30

charged with a scheduled offense had a better chance of acquittal than his Catholic counterpart. 120 The Commission concluded that religious and social differences in Northern Ireland had become so divisive that selection 121 of an impartial jury was highly unlikely, if not impossible. The Commission's claim that the polarization of the jury system required the elimination of that system has been assailed as more pretex- tual than substantive. Several critics have asserted that the stated grounds for abolishing jury trials were not adequately supported by fact and were based upon uncertain and unjustifiable premises. x22 Many commentators have asserted that judges who hear scheduled offenses lose their impartial- ity after they become "case-hardened" by the constant stream of terrorist offenders. 123 As proof of this phenomena, commentators have pointed to the significant drop in acquittal rates of defendants charged with scheduled offenses. 124 In addition to the elimination of jury trials, the Diplock courts also have greatly reduced the restrictions on the admissibility of evidence in criminal proceedings. 125 This reduction has had a significant effect on two distinct but related areas of the law: the admissibility of confessions and the defendant's right to remain silent. 126 The EPA eliminated the common law requirement that a confession be voluntary in order for it to be admissible. 127 Prior to the passage of the EPA, confessions were inadmissible if they were coerced from a defendant

120. GREER & Winr_, supra note 111, at 44. 121. See DIPLOCK REPORT, supra note 104, § 37; Brian P. Lenihan, Note, Unsound Method: Judicial Inquiry and Extradition to Northern Ireland, 34 B.C. L. REv. 591, 614 (1993); GREER & WnrrE, supra note 111, at 42-46. 122. SeeJohn D.Jackson & Sean Doran, The Diplock Court: Time for Re-Examination, 139 NEw L.J. 464 (1989); GREER, supra note 106, at 37 n.33 (noting that subsequent research has shown that the evidence was at best equivocal and that other options, besides wholesale elimination of jury trials, could have been considered first). 123. See Jackson & Doran, supra note 122, at 464; Talcott, supra note 97, at 482. 124. Charles Carlton, Judging Without Consensus-The Diplock Courts in Northern Ire- land, 3 L & POL'Y Q. 225, 234 (1981). 125. Lenihan, supra note 121, at 613. 126. See Dickson, supra note 113, at 104 (noting that the test for admissibility of a confession in a scheduled offense has been changed by the EPA making it easier for a coerced confession to be admitted at trial); Jackson & Doran, supra note 122, at 464 (noting the EPA's abrogation of a defendant's right to silence). 127. EPA, supra note 92, § 11. In American criminal procedure, a confession is admissible if two criteria are satisfied. First, the confession must have been obtained after the suspect was informed of his rights under the Miranda decision. See Miranda v. Arizona, 384 U.S. 436 (1966). Second, the confession must have been made voluntarily. 18 U.S.C. § 3501 (1994). In the United States, the issue of voluntariness is determined after a judge has had the opportunity to consider all the circumstances surrounding the confession. Id. § 3501(b). These circumstances include the amount of time that elapsed between arrest and arraignment, whether or not the defendant was advised of, or aware of, the fact that he was not required to make a statement, and whether or not the defendant had assistance of counsel. Id. The voluntariness standard seeks to ensure that a confession is barred when (1) it is of questionable reliability because of the way in which they were obtained; (2) it is believed to be reliable but obtained by offensive interrogation tactics; (3) it is obtained under circumstances which impaired the defendant's free choice, even if the police did not employ offensive interrogation tactics. WAYNE R. LAFAvE &JERoLD H. IsRAE., CRwiNAL PRocEDuRE § 6.2(b) (2nd ed. 1992). 1997 Compromise Between Outrage and Compassion

(i.e., if the police used oppression or other similar tactics to procure a confession). 128 The Diplock Commission believed that the voluntariness requirement was a serious impediment to the war on terrorism. 129 The Commission believed that the voluntariness requirement shielded terrorist defendants from the sting of their own words and permitted them to escape punishment. 130 Therefore, the Diplock Commission recommended aboli- 13 1 tion of the voluntariness requirement. The 1973 EPA incorporated this suggestion. The most recent amendment to the EPA retains the abolition of the voluntariness requirement. Section 11(2) states that the confession of a person charged with a scheduled offense is inadmissible if "the accused was subjected to torture, to inhuman or degrading treatment ... in order to induce him to make his statement.. ."132 Some commentators have posited that this provision of the EPA permits an interviewer to use a moderate amount of physical abuse to induce a person to make a statement. 133 Although the provision has been amended twice in an attempt to discourage violence, and threats of violence, from being employed as interrogation techniques, the provision still allows some involuntary confessions to be used against criminal 134 defendants. An additional concern informing the Diplock Commission's decision to relax the rules governing confessions was the fear that few witnesses would come forward to assist in the prosecution of terrorism.' 35 The Com- mission believed that confessions were frequently the only tool that the security forces would have available in their investigation and prosecution of terrorists because the fear of terrorist reprisals would make potential witnesses reluctant to speak out 13 6 As a result, the use of confessions 13 7 increasingly became a tool for combatting and prosecuting terrorists. In 1988, the British government became convinced that terrorists had learned that refusing to cooperate with security personnel during interrogations was the best way to ensure that they would not incriminate themselves. 138 In response, the British government enacted legislation that seriously limited the defendant's right to remain silent during interrogation and at trial. The passage of Criminal Evidence (Northern Ireland) Order 1988 ensures that suspected terrorists can incriminate themselves

128. See Regina v. Cowan, 1987 N.Ir. 338, 343 (C.A.). 129. DiLOcK REPORT, supra note 104, § 73-87. 130. Id. See also Lenihan, supra note 121, at 618-19. 131. DiILocK REPORT, supra note 104, § 91. 132. EPA, supra note 92, § 11(2)(b). 133. See Talcott, supra note 97, at 483-84. 134. EPA, supra note 92, § 11(2)(b). 135. DipLOcK REPORT, supra note 104, § 17. 136. Id. 137. Id. 138. See David Walchomer, The Suspect's Silence and the Prima Fade Case, 139 NEw UJ. 484, 485 (1989) (noting that increase in number of suspects exercising their right of silence supports the implication that professional criminals are hiding behind a right originally intended to protect "the weak and inadequate."); Lenihan, supra note 121, at 628. Cornell InternationalLaw Journal Vol. 30

not only when they choose to speak, but also when they refrain from speaking.' 39 The Order permits Diplock Courts to draw adverse conclusions from a defendant's refusal to answer questions during his interrogation, and his refusal to testify during trial. 140 In an attempt to mitigate the harshness of this legislation, the Criminal Evidence Order imposes several limitations on the conclusions that a judge may infer from a defendant's silence.141 Despite these limitations, however, the practical consequence of this order is that defendants charged with scheduled offenses in North- ern Ireland's courts cannot assert a right to silence without jeopardizing their defense. 142 Although the 1988 Criminal Evidence Order is significantly different from the American position that a criminal defendant has a privilege against self-incrimination, some commentators have asserted that the Order is not a significant departure from the right to silence rules that existed under English common law prior to the 1985 Order. 143 These commentators point to the fact that under the common law of Northern Ireland there has never been a per se rule against drawing adverse inferences from a defendant's refusal to testify or to answer questions during his interrogation. 144 Prior to 1988, however, Diplock Courts had generally refused to draw any inferences from such silence.' 4' In addition, the 1988 Order authorized the Diplock Courts to go beyond the common law and to draw negative inferences from a defendant's failure to mention some fact during interrogation that the defendant later remembers and decides to use as a part of his defense. 146 Thus, courts can use the Order to the detri- ment of defendants who remain totally silent, as well as those who cooperate during interrogation.

II. The Supplementary Treaty A. Elimination of the Political Offense Exception The United States and the United Kingdom enacted their first extradition

139. Criminal Evidence (Northern Ireland) Order, S.I. 1988, No. 1987. 140. Id. §§ 4(2), 4(6). In the United States, if after being given his Miranda warnings, the defendant remains silent, the prosecution may not use that fact to attack the defendants alibi at trial. See Doyle v. Ohio, 426 U.S. 610 (1976) (holding that the prosecution's use of petitioner's silence, after arrest and after receipt of Miranda warning, for impeachment purposes violated Due Process Clause of the Fourteenth Amendment). However, in cases where the police have not given Miranda warnings, as in the case of pre-arrest silence, the prosecution can use the defendant's silence to impeach the defendant's testimony. See Jenkins v. Anderson, 447 U.S. 231 (1980) (noting that the prosecution did not act improperly when it impeached defendant's self-defense claim by pointing out that defendant failed, for two weeks after the murder, to turn himself in to the authorities). 141. Criminal Evidence Order, supra note 139, §§ 2(4), 3(2)(c)(i), 4(5). 142. See Lenihan, supra note 121, at 628; Jackson & Doran, supra note 122, at 464. 143. See J.D. Jackson, Curtailing the Right of Silence: Lessons From Northern Ireland, 1991 CraM. L. R-v. 404, 405; Lenihan, supra note 121, at 630. 144. See Lenihan, supra note 121, at 630-31. 145. Lenihan, supra note 121, at 633. 146. Criminal Evidence Order, supra note 139, § 3. 1997 Compromise Between Outrage and Compassion

treaty in 1794, when they signed the Jay Treaty.14 7 The two nations have amended the terms of their extradition agreement several times over the past two hundred years, typically for the purpose of increasing the number of extraditable offenses. 14 8 The most recent amendment occurred in 1986 149 when the two nations signed the Supplementary Extradition Treaty. The Supplementary Treaty differed from other treaty amendments in that it radically restricted the traditional authority of American courts to deny extradition requests. The treaty did this by explicitly limiting the scope of 5 0 the political offense exception.' Article V of the 1977 Extradition Treaty provided that a request for extradition would be denied if the requested nation determined that the offense forming the basis of the request was political in nature.15 1 This provision, known as the political offense exception, was first codified in an extradition treaty between the United States and France in 1843,152 and has been a standard part of all United States extradition treaties ever since.15 3 The political offense exception is premised on the belief that political dissent is a legitimate means of effecting social change, and that political dissidents should not face official governmental retaliation 5 4 because of their sufficiently political activities.' It is generally believed that there are two types of political offenses: pure and relative. Pure political offenses are those that are aimed directly at a particular government or that government's representatives.15 5 Pure political crimes include treason, sedition, and espionage.' 5 6 Relative political offenses are merely common crimes perpetrated in furtherance of some political or ideological objective. 5 7 Most of the problems concerning extradition in political offense cases arise in connection with relative offenses, because common crimes, unlike pure political crimes, are extra-

147. Treaty of Amity, Commerce and Navigation, Nov. 19, 1794, U.S.-U.K, 8 Stat. 116, art. XXVII. 148. See Groarke, supra note 4, at 1517. 149. Supplementary Treaty, supra note 1. 150. See Groarke, supra note 4, at 1526-27. 151. Extradition Treaty, supra note 3, art. V. 152. See Groarke, supra note 4, at 1520; I.A. SHEARER, ExTRADTON ININTEMATIONAL LAW 167 n.5 (1971). 153. See Groarke, supra note 4, at 1520; Steven Lubet, ExtraditionReform: Executive Discretion and Judicial Participationin the Extradition of Political Terrorists, 15 Commn INT'L LJ. 247, 250 (1982). 154. Quinn v. Robinson, 783 F.2d 776, 793 (9th Cir. 1986). In his majority opinion, Judge Reinhardt delineated three justifications for the political offense exception. First, it is grounded in the notion that individuals have the "right to resort to political activism to foster political change." Second, the exception reflects the view that unsuccessful rebels should not be returned to countries where they may be subjected to unfair pun- ishments. Finally, the exception is premised on the belief that "governments should not intervene in the internal political struggles of other nations." Id. 155. Barbara Ann Banoff & Christopher H. Pyle, To SurrenderPolitical Offenders: The PoliticalOffense Exception to Extraditionin United States Law, 16 N.Y.UJ. INr'L L. & POL. 169, 178 (1984). 156. Id. 157. See id.; Groarke, supra note 4, at 1520. Cornell International Law Journal Vol. 30 ditable offenses. 158 Thus, the courts must determine if the common crime was done in furtherance of a political agenda, and if so, whether the individual deserves protection. In an attempt to assist jurists in determining how to apply the political offense exception when the underlying crime is a common crime, three different approaches to defining the scope of the political offense exception have developed.' 59 The first approach, developed by the French, defines political offenses as only those crimes which threaten the state. 160 This test takes the position that only pure political offenses deserve the protection of the political offense exception. This "injured rights" test was first articulated in 1947 in In re Giovanni Gatti.161 In that case, France extradited a man to the Repub- lic of San Marino who had attempted to murder a national of that nation. In distinguishing between relative and pure political offenses the French court stated, inter alia, that "the fact that the reasons of sentiment which prompted the offender to commit the offense belong to the realm of politics does not itself create a political offense." 162 This narrow test ensures that common criminals cannot use the political offense exception to protect themselves from being prosecuted for their common crimes. Additionally, the tat deviates from the goal of protecting all politically motivated actors in that it fails to protect fugitives whose actions, though motivated by a genuine desire for political change, do not directly harm the state. 163 The primary advantage of this test, as opposed to the other tests, is the certainty that it brings to the law. However, to achieve this measure of certainty, the French courts have minimized the importance and value of the political offense exception. Accordingly, those fugitives who truly seek political change but whose actions are not pure political crimes find no refuge in the French injured rights test. A second approach, developed by the Swiss, is the "political motivation" test.16 4 This test attempts to strike a more equitable balance between the competing values of administrative efficiency and protection of political offenders by distinguishing them from common criminals. Swiss courts weigh the political and common elements of a crime. Swiss courts cannot extradite fugitives if the political elements of the crime outweigh the common elements.' 65 British and American Courts have rejected both the Swiss and French tests in favor of the "political incidence" test.166 This test was first articu-

158. Banoff & Pyle, supra note 155, at 178; Groarke, supra note 4, at 1520. 159. Groarke, supra note 4, at 1521. 160. Id. 161. S.Jur. 1144 (Cours d'appeal, Grenoble 1947), 14 Ann. Dig. 145 (Ct. App. Greno- ble, Fr. 1947). 162.. S.Jur. II at 45, 14 Ann. Dig. at 145. 163. Groarke, supra note 4, at 1521. 164. See Geoffrey S. Gilbert, Terrorism and the PoliticalOffense Exemption Reappraised, 34 IT'L & COMP. L.Q. 695, 701 (1985); Groarke, supra note 4, at 1521-22. 165. See Gilbert, supra note 164, at 701-02. 166. See Groarke, supra note 4, at 1522; Banoff & Pyle, supra note 155, at 183-84. 1997 Compromise Between Outrage and Compassion

lated in 1890 by the British House of Lords in In re Castioni.167 The fugitive in that case was a Swiss national who had fled to England. The fugitive had been responsible for leading an insurrection that ultimately resulted in the death of a local government official. The House of Lords refused to extradite Castioni on the grounds that his acts were political in nature. The holding in that case established a two-part test. To avoid extradition, the defendant must prove that: (1) the act was committed during an uprising instigated by a group of which the defendant is a member; and (2) the crime was a violent one whose commission was incidental to the furtherance of a political cause.1 6 8 The United States first applied the political incidence test in 1894, in In re Ezeta.169 Antonio Ezeta, a Salvadoran, had participated in a revolt that had succeeded in overthrowing the previous Salvadoran government. As the Commander-in-Chief of the new government's army, he actively participated in the elimination of resistance and the suppression of opposition. 170 Another revolution forced him to seek refuge in the United States. The new government requested that the United States return Ezeta to the Republic of Salvador to stand trial for murder, robbery and other common 7 1 crimes that had occurred during the revolution and counter-revolution.' The United States refused to extradite Ezeta.1 72 The Ezeta court applied the political incidence test without regard to the underlying purposes for the test.173 After mechanically applying the reasoning of In re Castioni,the court held that offenses associated with the actual conflict of armed forces are political in nature and thus non-extraditable. 174 In the years following In re Ezeta, subsequent U.S. courts applied the political incidence test mechanically, whether or not the result was reasonable. The test became a bright-line rule that ensured that any common criminal act committed in the course of an armed revolt against a government would be protected as if it were a political act, notwithstanding the subjective motivation of the actor.1 75 United States ex rel. Karadzole v. Artukovic is a good example of a case in which the test is applied in a way that ignores the test's underlying purposes.' 76 In that case, the U.S. Dis-

167. [1891] 1 Q.B. 149. 168. See Groarke, supra note 4, at 1522-23; Bannoff & Pyle, supranote 155, at 183-84. 169. 62 F. 972 (N.D. Cal. 1894). 170. Id. at 977. 171. Id. at 975-76. 172. Id. at 976. The court held that the evidence of criminality, for a variety of charges, was sufficient in law to justify Ezeta's commitment for extradition, but that the crimes were of a political character, and therefore not extraditable. 173. See supra note 154 and accompanying text. 174. Id. at 997-99. 175. See Banoff & Pyle, supra note 155, at 184; Groarke, supra note 4, at 1523 n.68 (citing Ornelas v. Ruiz, 161 U.S. 502, 510-512 (1896), a case where the political offense barred extradition of a group of civilians who, as part of an armed gang, attacked Mexi- can soldiers, burned, looted, and stole from and murdered some of their victims). 176. 170 F. Supp. 383 (S.D. Cal. 1959), rev'd, 211 F.2d 565 (9th Cir. 1954). Although Karadzole was reversed by the Ninth Circuit, it nevertheless demonstrates the way in which some courts have reached bad results through mechanical application of the political incidence test. Cornell InternationalLaw Journal Vol. 30 trict Court for the Southern District of California refused to extradite an alleged war criminal, a member of the pro-Nazi regime in Croatia during World War 11, who had participated in the mass extermination of Serbs, because those acts occurred during, and in furtherance of, an armed struggle between the Serbs and Croats.177 In recent years, the application of the political incidence test in P.I.R.A.-related cases has resulted in outrage and condemnations in both the United States and Great Britain. 178 In one case, In re McMullen, 179 the court refused to extradite a P.I.R.A. member sought in connection with the bombing of a British army barracks in England. In 1981, another Ameri- can court refused to extradite a different P.I.R.A. member wanted for the attempted murder of a police officer in Belfast.180 Then, in 1984, the United States District Court for the Southern District of New York held that a P.I.R.A. fugitive, who had already been convicted of the murder of a Brit- ish soldier could not be extradited because his act was political in nature.181 Several commentators have noted that the political incidence test is both overinclusive and underinclusive, and that blind application of the two-pronged test leads to ridiculous results. 182 All crimes, regardless of the subjective motivations of the actor, committed during times of political turmoil are exempt from extradition, while ideologically motivated crimes, committed outside of these tumultuous periods, are totally unprotected. 183 These flaws, combined with the aforementioned cases, spurred the U.S. and British governments into action.18 4 The Reagan Administration drafted an amended treaty and submitted it to the Senate for approval in 1985.185 The primary difference between this treaty and its predecessor was found in article 1, which explicitly excluded a wide variety of common

177. Id. at 392-93. 178. Committee Hearings, supra note 110, at 4-5 (statement of Abraham D. Sofaer, Legal Adviser, United States Department of State); British M.P.'s Criticize Ruling on Extradition, N.Y. TimEs, Dec. 15, 1984, at 5. 179. Mag. No. 3-78-1099 M.G. (N.D. Cal. May 11, 1979). 180. In re Mackin, 668 F.2d 122 (2d Cir. 1981). 181. In re Doherty, 599 F. Supp. 270 (S.D.N.Y. 1984). 182. See supra notes 169-77 and accompanying text (examples of rigid application of test). 183. Banoff & Pyle, supra note 155, at 186. 184. See Stuart Taylor Jr., U.S. Aide FaultsJudge's I.R.A. Extradition Ruling, N.Y. TIMES, Dec. 19, 1984, at A23; Stuart Taylor Jr., Justice Department; Extradition: Hot Topic In CrusadeOn Terrorism, N.Y. TIMES, Dec. 21, 1984, at A28; Committee Hearings,supra note 110, at 4-5. 185. Supplementary Extradition Treaty with the United Kingdom: Messagefrom the Pres- ident of the United States Transmitting the Supplementary Extradition Treaty Between the United States of America and the United Kingdom of Great Britain and Northern Ireland, with Annex, Signed at Washington on June 25, 1985, 99th Cong., 1st Sess. 8 (1985) (Letter of Transmittal from President Ronald Reagan to the Senate) [hereinafter Message from the President]. In this message to the Senate, President Reagan stated that the amended treaty "represents a significant step in improving law enforcement cooperation and combatting terrorism, by excluding from the scope of the political offense exception serious offenses typically committed by terrorists." Id. 1997 Compromise Between Outrage and Compassion crimes from the political offense exception. 186 Article 1 of the Supplemen- tary Treaty effectively denies potential extraditees a defense to extradition based upon the political offense exception if the individual is accused or has been convicted of a violent crime. Thus, prior to ratification of the Supplementary Treaty, an individual who used violence in order to effect political change in the United Kingdom could qualify for the protections of the political offense exception. However, after the passage of this treaty, the individual would have no defense predicated on the political offense exception because, under the Supplementary Treaty, violent acts which are on the Treaty's list of excluded common crimes are no longer regarded as an offense of a political character. Political considerations, as opposed to substantive legal concerns, were the driving force behind the Administration's decision to amend the treaty. Prior to the 1986 amendments to the treaty, several federal courts had refused to apply the political incidence test in a mechanical and irra- tional fashion. Instead, they applied the test in a manner intended to effec- tuate the rational underlying purpose of the political offense exception. For example, in Eian v. Wilkes' 8 7 the Seventh Circuit upheld the decision of a federal magistrate to extradite a Palestinian terrorist to Israel. The fugitive was accused of setting off a bomb in an Israeli marketplace that killed two children. 18 8 The court refused to be constrained by a rigid application of the political incidence test. While acknowledging the fact that Eian's action was connected to an armed uprising, the court reasoned that the bombing, because of its indiscriminate nature, was not incidental to that armed uprising.1 8 9 The Eian court carved out a "Wanton crimes" exception to the incidence test.190 This exception cured some of the over- inclusiveness problems of the political incidence test. The wanton crimes exception authorizes the extradition of a fugitive accused or convicted of killing civilians, even if the fugitive is otherwise not extraditable under the two-part political incidence test.19 1 In Quinn v. Robinson,192 the Ninth Circuit held that the political offense exception to extradition was inapplicable to a P.I.R.A. fugitive accused of conspiracy to cause explosions and murder in connection with terrorist acts in England.193 In applying the incidence test, the court held that, while an uprising existed in Northern Ireland at the time of Quinn's actions, there was no such uprising in England, the place where Quinn's politically motivated crimes occurred.194 In reversing the lower court, which held that Quinn established a defense premised on the political offense exception, the Ninth Circuit stated that the traditional incidence

186. Supplementary Treaty, supra note 1, at 15. 187. 641 F.2d 504 (7th Cir.). 188. Id. at 523-24. 189. Id. at 520-21. 190. Id. 191. Id. 192. 783 F.2d 776 (9th Cir. 1986). 193. Id. at 817-18. 194. Id. at 818. 610 Cornell International Law Journal Vol. 30 test is sufficient to ensure that the two primary objectives of the political offense exception are met: (1) that international terrorists are extradited; and (2) that domestic revolutionaries are protected.1 95 The court stated that it was sufficient that "for purposes of the political offense exception, an uprising cannot extend beyond the borders of the country or territory in which a group of citizens or residents is seeking to change their particular 6 government "19 The Quinn court did not adopt the Seventh Circuit's wanton crimes exception, stating that it was "inappropriate to make qualitative judgments regarding a foreign government or a struggle designed to alter that government."197 Instead, the court retained the traditional incidence test and clarified its proper application. Of the test's two components, the court noted that it was the uprising requirement, and not the "incidental to" prong that played the pivotal role "in ensuring that the incidence test protects only those activities that the political offense doctrine was designed to protect." 198 According to the Quinn court, an act is incidental to an uprising when it is "causally or ideologically related to the uprising."199 In light of these decisions, it would seem that President Reagan's pro- motion of the Supplemental Treaty was ill-advised and unwarranted. The Treaty virtually eliminated the political offense exception at a time when the federal courts were acting to eliminate mechanical and unreasonable application of the test in an attempt to put the doctrine back on sound theoretical footing. An executive action clarifying the proper interpretation of the test, in view of the discrepancy between the Ninth Circuit and Sev- enth Circuit, would have been more helpful, and less invasive, than the chosen course of action which had the practical effect of eliminating a 150- year-old cornerstone of American extradition law.

B. Legislative Response to the 1985 Proposal 1. The Debate in the Senate The Supplementary Treaty met with significant resistance in the Senate when it was first offered for advice and consent.200 In fact, the Senate report described the Supplementary Treaty as "one of the most divisive and contentious issues the committee on Foreign Relations [had] faced" that term.201 The hostile reception by the Senate was caused by two aspects of the Treaty: the virtual elimination of the political offense exception; and the apparent unfairness of the Diplock courts in Northern Ireland. One of the chief criticisms leveled at the proposed treaty was its over-

195. Id. at 806. 196. Id. at 807. 197. Id. at 804. 198. Id. at 806. 199. Id. at 809. 200. Lenihan, supra note 121, at 599; Kelly, supra note 49, at 354-55. 201. S. Exec. Rep. No. 99-17, at 6 (1986). 1997 Compromise Between Outrage and Compassion

inclusiveness. 20 2 The treaty, as proposed, exempted all violent acts from the protection of the political offense exception.20 3 Critics argued that by placing all violent acts beyond the protection of the political offense exception, the draft treaty denied the legitimacy of armed conflict as a means of effectuating political change. 204 In addition, critics believed that the draft treaty set a bad precedent. Some commentators posited that this treaty would be the first step in a long march toward eliminating the political offense exception in all bilateral U.S. extradition treaties. 20 5 Senator Jesse Helms of North Carolina noted that, if this happened, "freedom fighters" as well as anti-government forces fighting against oppressive and totalitarian 20 6 regimes could be wrongly denied safe harbor in the United States. Another widespread concern within the Senate was that the President was abandoning the political offense exception, an important element of every American extradition treaty since 1843, for the sole purpose of fur- thering foreign policy objectives. Some Senators were outraged that the Reagan Administration would propose a new treaty as a means of doing what could not otherwise be done legally, namely returning political prisoners to governments that the prisoners had been unsuccessfully fighting.207 One member of Congress argued that the draft treaty was an attempt on the part of the British to force the United States to relinquish its neutrality and to explicitly support British rule in Northern Ireland.20 8 One commentator argued that the Reagan administration's proposed treaty eliminated the political offense exception as a way of thanking the British government for its support of the 1986 raid on Libya. 209 Still other criticism centered on the perceived unfairness of Northern Ireland's justice system. Some senators felt that the United States should not return persons to stand trial before, or complete criminal sentences already meted out by, a judicial system like the Diplock court system.210 As a result, some senators openly expressed their intentions to delay the

202. See Committee Hearings, supra note 110, at 228 (statement of Arthur Helton); Committee Hearings, supra note 110 at 231 (statement of David Carliner). 203. Supplementary Treaty, supra note 1, at 15. 204. 132 CONG. REc. 16,600-02 (1986) (remarks of Sen. Helms) (noting that the amended treaty makes no distinction between terrorists and freedom fighters). 205. See Phyllis Jo Baunach, The U.S.-U.IC Supplementary Extradition Treaty: Justice for Terrorists or Terrorfor Justice?, 2 CONN.J. Iwr'L L. 463, 484. 206. 132 CONG. REC. 16,600-01 (1986) (remarks of Sen. Helms). 207. See Committee Hearings, supra note 110, at 13-14 (statement of Senator Joseph Biden); Baunach, supra note 205, at 476 (noting that the treaty was "an effort to more narrowly circumscribe the political offense exception on a bilateral basis"). 208. Mario Biaggi, A Treaty That Would Belie U.S. Neutrality on Northern Ireland, N.Y. TImEs, Aug. 22, 1985, at A22. The author was, at the time of this article, a Congressman representing New York's Nineteenth District in addition to serving as chairman of the ad hoc Congressional Committee for Irish Affairs. See also Committee Hearings, supra note 110, at 49. 209. Kelly, supra note 49, at 357-62. The author notes that after British Prime Minis- ter Margaret Thatcher permitted American warplanes to use British bases in the Libyan raid, British and American sources adopted the view that the Supplemental Treaty should be passed as a way of demonstrating U.S. appreciation for Britain's support. 210. 132 CONG. REc. 16,592-93 (1986) (remarks of Sen. D'Amato). Cornell InternationalLaw Journal Vol. 30 ratification process and to use it as a forum for criticizing the British gov- 21 ernment's actions in Northern Ireland.

2. Compromise in the Senate: Adoption of Article 3(a) and the Rule of PartialInquiry In response to the widespread dissatisfaction with the treaty as originally proposed, the Senate Foreign Relations Committee proposed a compromise treaty. On July 17, the full Senate approved the compromise treaty by a vote of 87-10.212 As part of the compromise treaty, the Senate Foreign Relations Committee inserted the new article 3(a), in addition to some other changes that would benefit potential extraditees. 213 Article 3(a) provides: Notwithstanding any other provision of this Supplementary Treaty, extradition shall not occur if the person sought establishes to the satisfaction of the competent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions, or that he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in 2his14 liberty by reason of his race, religion, nationality or political opinions. Article 3(a) authorizes a court to deny extradition in two circumstances. The first circumstance is where the requesting state has "trumped up" charges against a fugitive.215 The second circumstance involves cases where a fugitive would be unfairly treated at his trial or, upon his return to the country seeking extradition, would be punished or restricted in his liberty because of his race, religion, nationality or political opinions. 216 To ascertain if either of these defenses applies, article 3(a) replaces the traditional rule of non-inquiry with a rule of partial inquiry.217 This rule of partial inquiry grants the fugitive the right to demonstrate that, as an individual, he would be prejudiced upon return because of discrimination within the requesting nation's criminal justice system. 218 The alteration of the rule of non-inquiry has spurred a great deal of

211. Committee Hearings, supra note 110, at 13-14. 212. See 132 CONG. REc. 16,819 (1986); Edward Walsh, U.S.-British Extradition Pact Ratified, WASH. PosT, July 18, 1986, at A4. 213. Supplementary Treaty, supra note 1, at 16. 214. Id. 215. Smyth, supra note 7, at 1150 (N.D. Cal. 1994). 216. Id. 217. Lenihan, supra note 121, at 600-01; Groarke, supra note 4, at 1530-31. The traditional rule of non-inquiry is premised on the belief that the United States only enters into extradition treaties with nations that will treat extraditees fairly. Glucksman v. Henkel, 221 U.S. 508, 512 (1911). Thus, American courts have refused to inquire into the treatment that a potential extraditee will suffer upon return to the requesting nation. Article 3(a) altered the rule of non-inquiry by expressly authorizing American courts to inquire into the treatment that a potential extraditee will face upon return to Northern Ireland. 218. In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1138 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 1997 Compromise Between Outrage and Compassion debate regarding its proper application. 219 According to the Senate For- eign Relations Committee, it is clear that the second clause of article 3(a) provides P.I.R.A. fugitives with a defense against extradition based on the unfairness of the Diplock court system.220 What is not clear is the proper scope of inquiry permitted under article 3(a). During the congressional debate on the Supplementary Treaty three interpretations of the scope of inquiry permitted by article 3(a) were offered. Senator Thomas Eagleton of Missouri argued that the scope of article 3(a) was very narrow and that it limited judicial inquiry to particular facets of the Diplock Court system that would deny the individual opposing extradition a fair trial.221 Under Senator Eagleton's view, American courts do not have the power to inquire into the inherent fairness or unfairness of a particular judicial system in the abstract.222 A court will deny extradition only when it determines that, in light of the particular circumstances of the case, the judicial system of the requesting country is "so unfair as to violate 2 3 fundamental notions of due process." 2 Senator John Kerry of Massachusetts argued for a broader interpretation of article 3(a).2 24 He argued that the scope of inquiry permits a fugitive to base a defense to extradition on the inherent unfairness of the Diplock system, and the assertion that Catholic republicans in Northern Ireland accused of terrorism cannot receive a fair trial in that system. 2 2 5 Senator Joseph Biden of Delaware also favored this interpretation.226 Since 1986 several commentators have endeavored to define the scope of the article 3(a) inquiry. 227 The predominant view on the issue can be found in a colloquy inserted by the Senate Foreign Relations Committee into the Executive Report accompanying the Supplementary Treaty.228 This interpretation is a compromise of sorts in that it is not as broad as Senator Kerry's but is more expansive than Senator Eagleton's. The colloquy set forth the majority view, and the view of the amendment's principal sponsor, Senator Richard Lugar of Indiana, that the inquiry should not be limited to the procedures employed at trial.229 However, it seems apparent

219. Id. at 1150 (noting that the permissible scope of inquiry under Article 3(a) has been the source of considerable debate). 220. 132 CONG. REc. 16,798 (1986); S. ExEc. REP. No. 99-17, at 5 (1986). 221. 132 CONG. REc. 16,605-07 (1986) (remarks of Sen. Thomas Eagleton) (noting that article 3(a) "has [a] narrow and focused scope... [it] is not intended to give courts authority generally to critique the abstract fairness of foreign judicial systems."). 222. Id. 223. Id. at 16,607. 224. Id. at 16,798-803 (remarks of Sen. John Kerry). 225. Id. 226. Id. at 16,798. 227. Talcott, supra note 97, at 491 (arguing that article 3(a) authorizes American courts to consider Northern Ireland's judicial system in future extradition requests); Lenihan, supra note 121, at 635 (asserting that American courts should not interpret article 3(a) as authorizing a "generalized inquiry" into the inherent fairness of Northern Ireland's judicial system when deciding future extradition requests). 228. S. ExEc. RP. No. 99-17, at 4-5 (1986). 229. In re Requested Extradition of Smyth, 61 F.3d 711, 715 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). Cornell International Law Journal Vol. 30

from the language of article 3(a) and the text of this colloquy that the 230 inquiry permitted under article 3(a) is individual and case specific.

C. Judicial Interpretation of Article 3(a) The Northern District of California was the first American court to determine whether article 3(a) afforded any protection to P.I.RLA. fugitives. 231 However, the Northern District was not the first U.S. court to discuss the implications of article 3(a). Several other federal courts, including the U.S. Court of Appeals for the Second Circuit, addressed the issue in dicta, and one court dealt with the issue in the context of a non-P.I.R.A. member. In McMullen v. United States,232 the Second Circuit affirmed the district court's holding that application of the Supplementary Treaty to Peter McMullen, a P.I.R.A. fugitive who had successfully asserted the political offense exception as a defense to extradition, was an unlawful bill of attainder.233 In reaching this conclusion, the court addressed some of the implications of the article 3(a) defense. In particular, the appeals court asserted that article 3(a) "does not appear to provide the same judicial safeguards as the 'political offense' exception."234 Only one fugitive, a non-P.I.R.A. member, asserted an article 3(a) defense prior to James Smyth.235 In In re Extradition of Howard, the defendant was an African-American man accused of murder. British authorities wanted him extradited so that he could stand trial. At the extradition hearing, Howard did not dispute the existence of probable cause, a requirement for extradition. Instead, he argued that he would be unfairly prejudiced at his trial because of his nationality and race, and because of the inordinate amount of media coverage surrounding the case. 23 6 In 1991, a U.S. Magistrate for the District Court of Massachusetts held that

230. In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1150 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996) (noting that the fugitive is granted the limited "right to establish that he himself would be prejudiced as a result of discriminatory treatment within the requesting country's criminal justice system"). 231. Id. at 1137. 232. McMullen v. United States, 953 F.2d 761 (2d Cir. 1992). 233. Id at 769. The court noted that Article I, § 9, cl. 3 of the Constitution provides that "[n]o Bill of Attainder. . . shall be passed." Id. at 764. The court then defined a bill of attainder as "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Id. at 764 (quoting Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-47 (1984)). 234. Id. at 768. The appeals court cited approvingly to the following statement of Senator Eagleton: It would be a ludicrous reading of the Supplementary Treaty as a whole to conclude that the United States and the United Kingdom went to enormous pains to eliminate the political offense defense... [and] then undid it all in article 3(a) by creating a huge new loophole by which terrorists could seek protracted sanc- tuary in the United States. Id. 235. In re Extradition of Howard, 996 F.2d 1320 (1st Cir. 1993). 236. Id. at 1323-24. 1997 Compromise Between Outrage and Compassion

article 3(a) did not prevent the extradition of Howard.237 In making this determination, the magistrate made some observations about the article 3(a) defense. Specifically, the magistrate noted that to avoid extradition the fugitive must show by a preponderance of the evidence that he had been prejudiced, or would be prejudiced, by the unfairness of the foreign judicial system.238 Furthermore, the magistrate asserted that a fugitive could not meet his burden merely by enumerating the differences between 39 the Diplock court system and the United States Courts. 2 The district court affirmed the magistrate's order.240 However, the district court judge did not address the soundness of the magistrate's interpretation of article 3(a).241 Howard appealed the district court's decision and the First Circuit re-affirmed the magistrate's order.242 The First Cir- cuit endorsed the magistrate's interpretation of article 3(a) when it stated that the magistrate correctly construed the provision to "require a showing of actual respondent-specific prejudice."243 With regard to the scope of the inquiry authorized by article 3(a), the court stated that "Congress intended the words to authorize inquiry into the attributes of a country's justice system as that system would apply to a given individual." 244 The court summarized its position by stating that to avail himself of an article 3(a) defense a fugitive must establish by a preponderance of the evidence that the requesting country would treat him differently from other similarly situated individuals because of his race, religion, nationality, or political affiliations. 245

III. Applying the Supplementary Treaty to James Smyth's Case A. Application of the Treaty by the U.S. District Court for the Northern District of California Although there had been considerable legislative and judicial interpreta-

237. United States v. Howard, Mag.No. 91-0468L-01 U.S. Dist. Lexis 16729 *56 (D. Mass. Nov. 18, 1991). 238. Id. 239. Id. at *39. 240. Inre Extradition of Howard, 791 F. Supp. 31,35 (D. Mass. 1992), affd, 996 F.2d 1320 (1st Cir. 1993). 241. In re Extradition of Howard, 996 F.2d 1320, 1329 (1st Cir. 1993). The First Circuit noted that the lower court did not review the magistrate's interpretation of the treaty because it believed that interpretation of the treaty was a fact question, and not a legal question. The First Circuit noted that interpretation of the treaty was a legal question that was capable of being scrutinized by a higher court. The First Circuit decided to resolve the legal question rather than remand. 242. Id. at 1333. 243. Id. at 1332. 244. Id. at 1330. This language seems to endorse the magistrate's position that a fugitive cannot establish a meritorious article 3(a) defense merely by outlining the inadequacies of the Diplock court system. At the very least, the fugitive must show that these inadequacies, as they are applied to him individually, will be unfairly prejudicial. 245. Id. at 1331. "It is not enough simply to show some possibility that some performed ideas might exist; rather, under the terms of the Supplementary Treaty, the bias must rise to the level of prejudicing the accused." 616 Cornell InternationalLaw Journal Vol. 30

tion of article 3(a) prior to the case of James Smyth,2 46 no P.I.R.A. member had ever asserted a defense to extradition based on this provision of the Supplementary Treaty. 24 7 Thus, many of the issues raised in the Smyth case were questions of first impression. Prior to ruling on the applicability of Smyth's Article 3(a) defense, Judge Caulfield carefully outlined the various facts of Smyth's life in North- ern Ireland that she considered relevant to ascertaining the merits of his claim.2 48 Judge Caulfield noted that Smyth was Catholic, a republican, and a member of Sinn Fein.249 Caulfield also noted that in the years pre- ceding his conviction for attempted murder, Smyth was the constant target of police harassment. 250 Despite his frequent contact with the security forces, Smyth was not charged with a crime until 1978, when he was charged with, and subsequently convicted of, the attempted murder of John Carlisle, an off-duty prison guard. In addition to outlining the facts of Smyth's life, Judge Caulfield made several inquiries regarding England's efforts to control the violence in Northern Ireland. Specifically, she examined the problems associated with the presence of British troops in Northern Ireland and with the Irish prison system. 251 The United Kingdom refused'to cooperate with some aspects of this discovery process. Although the court determined that several documents were relevant for discovery purposes, the United Kingdom refused to produce documents regarding governmental inquiries into past indiscre- tions on the part of security personnel.25 2 The United Kingdom premised its refusal on alternative grounds: (1) that the documents were not relevant to the inquiry; and (2) that the documents were protected by the state secrets privilege, deliberate process privilege, and investigatory files privilege. 253 The district court found that the documents were relevant and

246. In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1150 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 247. Id. at 1150 (noting that the question of whether article 3(a) may prevent the extradition of an alleged I.R.A. fugitive is a question of first impression). 248. Id. at 1147-48. 249. Id. at 1147. 250. Id. at 1148. The court noted that the evidence established that Smyth had been arrested and detained by the police dozens of times before his arrest for attempted murder. During those detentions he was beaten and physically abused. He spent the entire year of 1974 in detention. In addition, evidence was presented establishing the fact that security personnel frequently searched Smyth's home, despite the fact that nothing criminal was ever found. Id. 251. Id. at 1140-47. 252. Id. at 1138-39. Smyth sought to compel the British government to release several documents that chronicled illegal and discriminatory practices perpetrated by the security forces in Northern Ireland. The Stalker-Sampson Reports documented an investigation of certain members of the security forces relating to the shooting deaths of six persons believed to be P.I.R.A. members. Id. at 1138. The Kelly Report was commis- sioned to determine if criminal charges should be brought against security personnel implicated in murder and other crimes by the Stalker-Sampson Report. Id. The Stevens Inquiry investigated charges of collusion between members of the security forces and loyalist paramilitaries. Id. 253. Id. at 1139. 1997 Compromise Between Outrage and Compassion

were otherwise discoverable. The United Kingdom, however, refused to produce the documents. In response to this refusal, the court granted the following rebuttable presumptions to Smyth: "(1) Catholic Irish nationals accused or found guilty of offenses against members of the security forces or prison officials are subjected systematically to retaliatory harm, physical intimidation and death in Northern Ireland[;] (2) Members of the security forces in Northern Ireland either participate directly or tacitly endorse 254 these actions." In trying to determine the appropriateness of an article 3(a) defense, Judge Caulfield looked to U.S. immigration law regarding withholding of deportation. 255 She believed that certain aspects of that law, specifically 8 U.S.C. § 1253(h), would provide a helpful and useful analogy to article 3(a).25 6 Both Smyth and the U.K. agreed.2 57 Under this statute, the government will not deport an individual if that individual can prove that upon his return, his life or freedom will be endangered on account of his race, religion, nationality or political opinion. 25 8 Because the protections afforded by article 3(a) and § 1253(h) were very similar, Judge Caulfield believed that the regulations implementing the withholding of deportation statute provided useful guidance for evaluating evidence and determining if the statutory requirements of article 3(a) had been met.25 9 Under § 1253(h), once an individual establishes that he has been the victim of past persecution in his homeland, a presumption arises that the person's life would be threatened upon return to that country.2 60 The burden then shifts to the U.S. government to prove, by a preponderance of the evidence, that sufficient changes have occurred within the potential deportee's homeland to ensure that the potential deportee's life would no longer be jeopard- ized by a forced return. 261 Further, the regulation mandates that the potential deportee need not provide evidence that he individually would be singled out for such persecution. 262 A person can also avoid deportation if he establishes that he is a member of a group that is systematically perse-

254. Id. 255. See infra Part 1V.B. 256. In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1151 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 257. Id. at 1151, n.11. 258. 8 U.S.C. § 1253(h) (1987). The statute specifically states that "The Attorney General shall not deport or return any alien ...to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. See supra note 6 to compare this language with the similarly drafted article 3(a) of the Supplementary Treaty. 259. 8 C.F.R. § 208.16(b) (1997). This regulation enunciates eligibility requirements for individuals seeking to avoid deportation under authority of 8 U.S.C. § 1253(h). Since the language of this statute and article 3(a) of the Supplementary Treaty are so similar, it is logical that the regulations implementing 8 U.S.C. § 1253(h) would be equally applicable to article 3(a). 260. 8 C.F.R. § 208.16(b)(2) (1997). 261. Id. 262. Id. Cornell International Law Journal Vol. 30 cuted.263 If the individual establishes that he is identified with, or included in, that persecuted group, and that it is more likely than not that his life will be threatened upon return, he does not need to offer proof of 26 4 individual harm. Judge Caulfield's extensive findings of fact, the presumptions awarded to Smyth, and the analogy of 1253(h) to article 3(a) in interpreting the latter formed the basis of her decision to deny the United Kingdom's request to certify Smyth for extradition. Judge Caulfield stated that Smyth would be punished and restricted in his personal liberty "by reason of his status as a Catholic Irish national and on account of his political opinions as a republican and member of Sinn Fein."265 After considering the evidence regarding events that occurred when Smyth was in Northern Ireland, the state of affairs there at that time, and the likelihood of change in the future, Judge Caulfield held that Smyth had established an article 3(a) 266 defense to extradition. The court supported its holding in three ways. First, the United King- dom did not rebut the presumption that Smyth would face retaliatory punishment and harm upon his return to Northern Ireland.267 Second, Smyth had established, without use of the presumption, that he would be persecuted on account of his religious and political beliefs punished upon his return to prison in Northern Ireland.268 Finally, Smyth established that he would be punished, detained and restricted in his personal liberties upon his release from prison.269

B. Application of the Treaty by the U.S. Court of Appeals for the Ninth Circuit The government immediately appealed the district court's decision. According to the appellant, the district court erred in three respects: (1) it misinterpreted the terms of the treaty when it inquired into Smyth's likely post-incarceration treatment; (2) in awarding Smyth evidentiary presumptions; and (3) the evidence presented was insufficient to support the district court's findings and conclusions. 270 After considering the government's appeal, the United States Court of Appeals for the Ninth Cir-

263. Id. § 208.16(b)(3) (1997). 264. Id. 265. In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1151 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 266. Id. 267. Id. 268. Id. 269. Id. The court stated that the past mistreatment of Smyth, prior to his arrest for attempted murder, "is a harbinger of things to come if Mr. Smyth returns to the streets of Northern Ireland." Id. at 1154. The court then noted that the likelihood that Smyth would be harassed and targeted by the security forces after release from prison was greater in the future than it was in the past, primarily because in the future he will be deemed an actual, rather than a suspected, terrorist. Id. at 1155. 270. In re Requested Extradition of Smyth, 61 F.3d 711, 718-719 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 1997 Compromise Between Outrage and Compassion cuit reversed and remanded the matter for entry of an order authorizing 271 extradition. In response to the government's first ground for appeal, the Ninth Cir- cuit held that the district court was correct in recognizing that the Supple- mentary Treaty authorizes courts to examine the treatment an extraditee might possibly suffer at the hands of the criminal justice system after extra- 272 conclusion dition. The Ninth Circuit agreed with the district court's 273 that it is possible for punishment "to extend beyond the jalhouse door." According to the Ninth Circuit, this is especially true in Northern Ireland, particularly where evidence had been presented at trial showing that prison guards provided information to Loyalist forces concerning the time and place of the release of republican prisoners. 274 The Ninth Circuit noted that if a fugitive demonstrates, by a preponderance of the evidence, such misconduct following his release, that he will likely be the target of 2 75 then that person is entitled to protection under the terms of article 3(a). In response to the government's second ground for appeal, the Ninth Circuit discussed the implications of the presumptions awarded to Smyth. According to the Ninth Circuit, the presumptions granted to Smyth by the lower court as both a sanction for the United Kingdom's refusal to provide requested documents and as a remedy for Smyth's inability to obtain necessary evidence, were insufficient to establish the critical elements of the article 3(a) defense.276 While the presumptions effectively established that Smyth would be the target of retaliation if the United States returned him to Northern Ireland, they did not address the issue of whether the presumed retaliation would be inflicted because of Smyth's race, religion, nationality or political opinions, as required by article 3(a).2 77 The panel asserted that article 3(a) does not authorize denial of extradition in cases where the extraditee will be targeted for retaliation as a result of the underlying crime. 278 Thus, the unrebutted presumptions established only that Smyth would be subject to retaliation and harm. The court held that the mere fact that Smyth would be subject to such harm upon his return, without a showing that this harm was the direct result of his political opinions, religion or nationality, was insufficient gound for an Article 3(a) defense.279 The court asserted that to qualify for the defense, the defendant must establish the crucial link between the extralegal harm to be sus- be inflicted for reasons forbidden tained and the fact that such harm would 280 by article 3(a), rather than merely on account of his underlying crime.

271. Id. at 722. 272. Id. at 719. 273. Id. 274. Id. 275. Id. 276. Id. at 720-21. 277. Id. at 721. 278. Id. 279. Id. 280. Id. at 720. Cornell InternationalLaw Journal Vol. 30

The government's final ground for appeal challenged the sufficiency of the evidence presented to support Smyth's claim that he would be harmed after being released from jail.28 1 On this issue, the Ninth Circuit concluded that the district court erred in at least two respects. First, the circuit court held that the district court's resort to the withholding of deportation statute, which presumes a present danger of persecution from past persecution, cannot validate a presumption that Smyth will be at risk in the future.282 Second, the Ninth Circuit held that the district court should not have relied to the extent that it did upon the evidence of discrimination in Northern Ireland against Catholics and republicans generally.28 3 The Ninth Circuit noted that the evidence regarding the treatment of Catholics generally does not necessarily relate to the treatment that Smyth would be likely to receive after his release from prison. In sum, the Ninth Circuit held that the evidence did not establish that Smyth would suffer retaliatory harm as a result of his religious or political views. 28 4

IV. Deficiencies in the Ninth Circuit's Interpretation of Article 3(a) OnJanuary 5, 1996, a panel of judges from the Ninth Circuit voted to deny Smyth's petition for a rehearing and his suggestion for rehearing en banc.2 85 OnJune 24, 1996, the Supreme Court denied Smyth's petition for writ of certiorari.286 On August 18, 1996 Smyth was extradited to North- em Ireland after U.S. Secretary of State Warren Christopher signed the extradition order.287 Although James Smyth has already been returned to Northern Ireland, and the Supreme Court has tacitly endorsed the Ninth Circuit's interpretation of article 3(a), it remains important to highlight the deficiencies in the Ninth Circuit's interpretation of article 3(a). The Ninth Circuit erred in three ways: (1) in holding that the district court erroneously relied on evidence of the type of harm extradited P.I.R.A. fugitives in general faced upon return to Northern Ireland rather than relying upon evidence that Smyth as an individual would suffer retaliatory harm from forbidden discrimination upon his return to Northern Ireland; (2) in rejecting § 1253(h), the withholding of deportation statute, as an analog to article 3(a); and (3) in holding that the presumptions awarded by the district court were insufficient to establish an article 3(a) defense to extradition.

A. The District Court Did Not Rely Solely on General Evidence Since the Supplementary Treaty was enacted in 1986, most courts that have discussed the scope of the inquiry authorized by article 3(a) have asserted

281. Id. at 718-19. 282. Id. at 720. 283. Id. 284. Id. 285. In re Requested Extradition of Smyth, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. CL 2258 (1996). 286. Smyth v. United States, 116 S. Ct. 2558 (1996). 287. Fugitive Returned to Northern Ireland, S.F. CHRON., Aug. 19, 1996, at A13. 1997 Compromise Between Outrage and Compassion that the provision authorizes a focused inquiry into Northern Ireland's judicial system. This is consistent with the majority view expressed by Sen- ator Lugar in the Senate's debate of the treaty.288 In light of this view and of the underlying intent of the Supplementary Treaty to facilitate the extradition of P.I.R.A. members found in the United States,289 the court of appeals was authorized by article 3(a) to engage in a focused inquiry.290 However, the court of appeals narrowed the scope of permissible inquiry too much. The Ninth Circuit erred in holding that the district court failed to make sufficient findings of fact specific to Smyth merely because it relied on some general evidence of discrimination against Catholics in the 291 judicial system of Northern Ireland. The Ninth Circuit was correct in asserting that "Article 3(a) does not permit denial of extradition on the basis of an inquiry into the general political conditions extant in Northern Ireland."2 92 However, in applying this focused inquiry, the Ninth Circuit was wrong to conclude that the district court failed to engage in an individualized inquiry simply because the lower court highlighted some relevant evidence of the mistreatment of other Catholic republicans in Northern Ireland. When district court Judge Caulfield concluded that James Smyth would, upon his return to Northern Ireland, likely suffer extralegal harms for forbidden reasons, she supported her holding with extensive evidence related specifically to James Smyth.293 The district court found that prior to being convicted of attempted murder in 1979, Smyth had been the frequent target of police harassment. 294 Specifically, the court found that prior to 1979 Smyth had been arrested and detained by the police dozens of times, despite the fact that he was never actually charged with commission of a criminal act until he was charged with the attempted murder of John Carlisle.29 ' The court also noted that after being arrested Smyth was often detained for long periods of time, after which he would return home 296 with bruises and marks indicating that he had been physically abused. Furthermore, the court noted that Smyth had been detained for the entire

288. See supra notes 228-30 and accompanying text. 289. Message from the President, supra note 185. 290. The First Circuit noted that Congress intended the provision to authorize the court to inquire into the attributes of Northern Ireland's justice system as that system would affect a given individual. In re Extradition of Howard, 996 F.2d 1320, 1330 (1st Cir. 1993). 291. In re Requested Extradition of Smyth, 72 F.3d 1433, 1439 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996) (dissenting opinion). 292. In re Requested Extradition of Smyth, 61 F.3d 711, 720 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996) (dissenting opinion). The court also noted that the history of article 3(a) establishes the fact that it requires an individualized inquiry. 293. In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1150 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 294. Id. at 1148. 295. Id. 296. Id. Cornell International Law Journal Vol. 30

year of 1974 without being charged with any criminal activity.2 9 7 The district court weighed all this evidence and stated, "the frequent law enforcement contact with Mr. Smyth-not leading to the filing of charges-leads to the conclusion that Mr. Smyth was targeted for attention not because he had committed crimes but instead because he was a member of Sinn Fein 29 8 and a republican." Judge Caulfield did not rely solely on this strong evidence of individual political and religious discrimination against Smyth prior to his conviction in 1979. She also found evidence of forbidden religious and political discrimination against Smyth while he was in prison. Specifically, Judge Caulfield stated that after being incarcerated, "Smyth was treated worse 299 than other prisoners because of the political nature of his crime." Smyth received an explicit death threat shortly after arriving at prison.30 0 Furthermore, he also received implicit death threats from a prison 3 0 official. ' After considering the abundance of evidence of forbidden discrimination endured by Smyth as an individual, both before and after his conviction in 1979, it is difficult to comprehend how the Ninth Circuit could find that "the district court erred in relying extensively upon evidence of the general discriminatory effects of the Diplock system upon Catholics and suspected republican sympathizers." 30 2 It is true that the thorough opinion of the district court analyzed many of the discriminatory features of the justice system in Northern Ireland, including the pattern of discriminatory practices exhibited by prison officials and security personnel. However, these general findings of discriminatory practices in no way detract from the strength of the aforementioned evidence of discrimination against Smyth. Rather, this general evidence should be seen as supplementing the individual evidence and creating a context in which the individual mistreatment of James Smyth can be understood. Courts should not inquire into the specific discrimination of one individual in Northern Ireland in a vacuum, as the Ninth Circuit seems to suggest. Rather, they should look at the totality of the extant conditions. Presentation and assessment of general evidence of discrimination can establish a general context within which the evidence of individual discrimination can be better understood and appreciated. This is not to suggest that a fugitive can support a valid article 3(a) defense to extradition without showing how he individually

297. Id. 298. Id. at 1153. 299. Id. 300. Id. 301. Id. at 1146. The court noted that prison officer Evans told Smyth that he could not guarantee Smyth's safety because of the political nature of his crime. The court asserted that the threatening nature of the statement is clear, because Smyth had no reason to fear that other republican prisoners would harm him because of his political crime. Thus, the only persons that would be apt to threaten Smyth's safety would be the prison guards themselves. 302. In re Requested Extradition of Smyth, 61 F.3d 711, 720 (9th Cir. 1995), rehg denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 1997 Compromise Between Outrage and Compassion 623 will be harmed or by merely presenting evidence of general discrimination in Northern Ireland.303 It does, however, suggest that in cases such as Smyth's, where the fugitive has presented a plethora of evidence indicating individual, religious and political discrimination, the presentation of general discriminatory treatment in Northern Ireland, as a supplement to that individual evidence, should not be dismissed wholesale and certainly should not be used by a reviewing court to nullify the findings of the lower court's individualized inquiry. B. Justifying the Use of 8 U.S.C. § 1253(h) and Its Implementing Regulations as an Analog to Article 3(a) Withholding of deportation forbids the return of an individual to a nation in which he or she would be subject to certain types of persecution. This procedure is required by Article 33 of the U.N. Convention Relating to the Status of Refugees, which is binding upon the United States because of our adherence to the U.N. Protocol on the same issue.30 4 This remedy is codified at 8 U.S.C. § 1253(h) which provides that, "the Attorney General shall not deport or return any alien... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particu- 30 5 lar social group or political opinion." To establish a defense to deportation premised upon § 1253(h), the individual must prove a "dear probability of persecution." 30 6 In INS v. Stevic,30 7 the Supreme Court held that this standard requires an applicant to prove that it is more likely than not that he or she would be subject to persecution "on account of" one of the five factors enumerated in the statute.30 8 In § 1253(h) claims, courts have held that a showing of persecution "on account of" one of the five enumerated factors demands that the applicant establish mistreatment by the government or a particular organization.30 9 Furthermore, this harm must go beyond the general harms associated with civil unrest and periods of strife.310 In the context of persecution on account of political opinion, the Board of Immigration Appeals (BIA) has held that an applicant must establish that

303. See In re Requested Extradition of Howard, 996 F.2d 1320 (1st Cir. 1993). The court noted that "Congress intended the words to authorize inquiry into the attributes of a country's justice system as that system would apply to a given individual." Id. at 1330. The court later stated that the provision required "a showing of actual respondent-specific prejudice." Id. at 1332. 304. Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, T.I.A.S. No. 6577, 189 U.N.T.S. 150. The United States did not originally accede to the 1951 Convention. However, the United States has since acceded to the Convention after the adoption of a protocol in 1968. Protocol Relating to the Status of Refugees, Jan 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267. 305. 8 U.S.C. § 1253(h). 306. INS v. Stevic, 467 U.S. 407 (1984). 307. Id. 308. Id. at 424. 309. Matter of T-, 20 1. & N. Dec. 571, 575 (BIA 1992). 310. Matter of Acosta, 19 1. & N. Dec. 211, 222 (BIA 1985). Cornell International Law Journal Vol. 30

the particular belief or characteristic a persecutor seeks to overcome in an individual must be his political opinion. Thus, [it] refers not to the ultimate political end that may be served by persecution, but to the belief held by an 3 11 individual that causes him to be the object of the persecution. Once an individual meets this burden, the relief authorized by the statute is 3 12 mandatory and withholding of deportation must be granted. The INS regulation implementing the withholding of deportation statute is 8 C.F.R. § 208.16. Eligibility for withholding of deportation is set forth in § 208.16(b). Judicial interpretation of the requirements for withholding of deportation has established that the applicant for withholding of deportation will carry his burden only by proving a "clear probability of persecution."3 13 In addition, § 208.16(b) provides standards for evaluating the evidence.3 14 8 C.F.R. § 208.16(b)(1) provides that the applicant establishes a valid claim under § 1253(h) if the court finds that it is more likely than not that the applicant "would be persecuted on account of his race, religion, nationality, membership in a particular social group, or political opinion."3 15 Sub-section (b)(2) provides that if an individual establishes that he or she suffered past persecution on account of one of the impermissible factors, then it shall be presumed that his or her life would be threatened on return to that country unless a preponderance of the evidence establishes that conditions in the country have changed such that it is no longer more likely than not 3 16 that the individual would be so persecuted there. Finally, sub-section (b)(3) provides that the finder of fact shall not require the applicant to provide evidence that he would be singled out for persecution if he establishes two things: (1) that there is a pattern and practice of persecution of groups of persons similarly situated to the applicant for impermissible reasons in the country of deportation; and (2) the individual establishes his own inclusion in and identifica- tion with such group such that it is more likely than not that his life or freedom would be punished upon his return. 3 17 In concluding that Smyth would be impermissibly punished upon his return to prison in Northern Ireland and upon his release into the general population, Judge Caulfield analogized the language ot article 3(a) to 8

311. Id. at 234-35. 312. 8 U.S.C. § 1253(h) (1987); INS v. Cardoza-Fonseca, 480 U.S. 421, 444 (1987). 313. INS v. Stevic, 467 U.S. 407, 422 (1984). The court noted that to qualify for withholding of deportation an applicant must establish that he "would" be threatened in the country to which he would be deported to. The court highlighted the fact that the use of the term "would" as opposed to "could" or "might" evinces the intent of the legis- lature that a likelihood of persecution must exist to qualify the alien for withholding of deportation. Id. 314. 8 C.F.R. § 208.16(b) (1997). 315. Id. 316. Id. 317. Id. 1997 Compromise Between Outrage and Compassion

U.S.C. § 1253(h).318 In addition, Judge Caulfield asserted that the regulations implementing the withholding of deportation statute provided a useful standard for evaluating evidence.3 19 Under 8 C.F.R § 208.16(b)(2), a showing of past persecution creates a presumption that the individual's life or freedom will be threatened upon return to the country unless a preponderance of the evidence establishes that conditions in that country have sufficiently improved.320 Judge Caulfield noted that in establishing that his life or freedom will be threatened upon return to his home land, the individual need not provide that he or she would individually be targeted for persecution if he or she established two facts: (1) there is a pattern and practice in the country of persecution of groups of protected persons similarly situated to the individual; and (2) he or she establishes his or her inclusion in that group such that it is more likely than not that his life or 21 freedom would be threatened upon his or her return. 3 After setting forth this analogy, Judge Caulfield applied it to the facts of Smyth's article 3(a) defense. Judge Caulfield held that it was more likely than not that Smyth had established that he would be impermissibly punished upon his return to prison in Northern Ireland.322 Specifically, after applying the provisions of 8 C.F.R § 208.16(2), the court found that Smyth's past treatment at the hands of prison personnel established that he would likely face the same harm upon his return to prison.323 Further- more, after applying 8 C.F.R § 208.16(3), the court found that the inappropriate treatment of other persons similarly situated to Smyth established that it was more likely than not that his life and freedom would be threatened upon his return to prison.324 Judge Caulfield also used this analogy to determine that Smyth's likely post-incarceration treatment further established a defense to extradition.325 Specifically, after applying § 208.16(b)(2), the court held that "[tihe past mistreatment of Mr. Smyth is a harbinger of things to come if Mr. Smyth returns to the streets of Northern Ireland."326 In addition, the court noted that the mistreatment of individuals similarly situated to James Smyth created a presumption that he too would be punished after serving the remaining years of his prison sentence. 327 The Ninth Circuit rejected Judge Caulfield's use 8 C.F.R. § 208.16(b) to interpret article 3(a). The panel asserted that the use of § 208.16(b) did

318. In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1151 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. CL 2258 (1996). 319. Id. 320. 8 C.F.R. § 208.16 (1997). 321. 8 C.F.R. § 208.16(b)(3) (1997). 322. In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1153 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 323. Id. 324. Id. at 1153, 1154. 325. Id. at 1154. 326. Id. 327. Id. at 1155. Cornell InternationalLaw Journal Vol. 30 not establish that Smyth would be persecuted for religious or political grounds upon his post-incarceration release into the general population of Northern Ireland.328 The Ninth Circuit held that the district court's reli- ance upon § 208.16(b) was erroneous for two reasons. First, the appeals court held that the withholding of deportation statute presumes a present danger of persecution from past experience of persecution. 329 Therefore, the statute cannot validate the district court's presumption of a risk of persecution in the future.330 Second, the appeals court found that the district court erroneously relied upon evidence of the general discriminatory effects of Northern Ireland's justice system upon Catholics and Sinn Fein supporters.331 However, the issues raised by the Ninth Circuit are not serious impedi- ments to the use of §1253(h) as an analog to article 3(a).

1. 8 C.FR. § 208.16(b)(2) Presumes a Present and Not a Future Danger of Persecution

The Ninth Circuit held that 8 C.F.R. § 208.16(b)(2) could not be used to support the district court's finding that Smyth would be punished upon his post-incarceration release into the general population of Northern Ire- land.332 The panel reached this conclusion by stating that evidence of past persecution of an individual, or a "pattern and practice" of persecution of persons similarly situated to that individual, presumes a present danger of persecution, not that such persecution is likely to occur in the future.333 This argument is flawed because it fails to recognize that drawing inferences from past conduct to predict future behavior is a common method of reasoning in our system of justice.334 Furthermore, inference- drawing, the process by which the presence of one fact leads to a probable estimate of a second fact, is an often-practiced tool for fact-finding.335 Therefore, the fact that § 208.16(b)(2) does not explicitly authorize a presumption of future harm to be drawn from evidence of past persecution is not a serious impediment to the use of § 208.16(b)(2) to evaluate evidence presented to support an article 3(a) defense to extradition.

328. In re Requested Extradition of Smyth, 61 F.3d 711, 720 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 329. Id. 330. Id. 331. Id. 332. Id. 333. Id. 334. In re Requested Extradition of Smyth, 72 F.3d 1433, 1435 (9th Cir. 1996) (dissenting opinion), cert. denied, 116 S. Ct. 2258 (1996). Judge Noonan stated that the Supreme Court expressly noted in Jurek v. Texas, 428 U.S. 262, 275-76 (1976), that predicting future events by analyzing past experiences is performed countless times each day in U.S. courts. 335. Id. 1997 Compromise Between Outrage and Compassion

2. Article 3(a) Requires an Individual Inquiry The Ninth Circuit's attack of the district court's use of generalized evidence to support an article 3(a) defense to extradition poses a more significant problem to the use of § 208.16 in the evaluation of evidence in extradition cases. As noted above, article 3(a) requires a fugitive to establish that he or she would individually be subject to persecution if returned to Great Brit- ain.3 36 Thus, a court could not use generalized evidence of persecution of persons similarly situated to the fugitive to establish a meritorious article 3(a) defense to extradition. 8 C.F.R. § 208.16(b)(3), however, provides that an individual seeking a remedy under § 1253(h) can use just that type of evidence. Specifically, § 208.16(b)(3) states that: In evaluating whether the applicant has sustained the burden of proving that his life or freedom would be threatened in a particular country on account of his race, religion, nationality, membership in a particular social group, or political opinion, [the adjudicator] shall not require the applicant to provide3 3 7 evidence that he would be singled out individually for such persecution. Despite the discrepancy between the scope of inquiry authorized under article 3(a) and § 208.16(b)(3), the regulations implementing § 1253(h) can still serve as a useful tool in evaluating evidence presented in support of an article 3(a) defense. Specifically, it is important to note that § 208.16(b)(2) does not authorize the use of general evidence of persecution.3 38 Rather, this subsection authorizes a court to award a presumption of persecution if "the applicant is determined to have suffered persecution in the past such that his life or freedom was threatened in the proposed country of deportation" on account of one or more of the enumerated factors.3 39 Thus, in applying the provisions of 8 C.F.R. § 208.16 to evaluate evidence in the context of extradition proceedings, courts should apply subsection (b)(2) instead of (b)(3). Therefore, the district court was wrong to use 8 C.F.R. § 208.16(b)(3) to validate Smyth's article 3(a) defense. However, this fact should not detract from the district court's use of 8 C.F.IR § 208.16(b)(2) to validate Smyth's article 3(a) defense. The withholding of deportation statute and regulations implementing that statute provide an excellent standard for evaluating evidence presented in support of an article 3(a) defense to extradition. Since no regulations exist to guide courts in applying the remedy afforded under article 3(a), the regulations implementing 8 U.S.C. § 1253(h) should have been used by the Court of Appeals in Smyth's case. Furthermore, 8 U.S.C. § 1253(h) should be used in future extradition cases where an individual asserts an article 3(a) defense to extradition because the burdens of proof are identical and the protections afforded by both remedies are so similar. An individual seeking a remedy under § 1253(h) must establish a clear probability of persecution on account of his or her race, religion,

336. See supra notes 228-30 and accompanying text. 337. 8 C.F.R. § 208.16(b)(3) (1997). 338. 8 C.F.RL § 208.16(b)(2) (1997). 339. Id. Cornell InternationalLaw Journal Vol. 30

nationality, membership in a particular social group, or political opinions.340 Similarly, an individual seeking a remedy under article 3(a) must establish by a preponderance of the evidence that he or she will be subject to persecution on account of his or her race, religion, nationality, or political opinions.341 Thus, the burden of proof that an individual must carry to establish a valid defense to extradition under article 3(a) is the same burden of proof required to establish persecution under § 1253(h). The only difference between the protections afforded by these two provisions is that § 1253(h) protects membership in a particular social group, whereas article 3(a) does not. However, 8 U.S.C. § 1253(h) and article 3(a) both provide identical protection to persons persecuted on account of race, religion, nationality and political opinion. Since article 3(a) is relatively new and scarcely used, there has been little judicial interpretation of what constitutes punishment "on account of [an individual's] race, religion, nationality, or political opinions." Therefore, it is only logical that courts interpreting this provision look to the manner in which courts have defined persecution "on account of race, religion, nationality. .. or political opinion" in the context of § 1253(h) claims. In light of the great similarities between 8 U.S.C. § 1253(h) and article 3(a), it is obvious that courts should look to § 1253(h) when applying article 3(a). Since § 1253(h) has been the subject of more judicial interpretation than the scarcely used article 3(a), courts interpreting the latter provision can benefit from these interpretations. In addition, since there are no regulations interpreting the language of article 3(a), courts should seek guidance from the regulations that have been drafted to assist courts facing withholding of deportation requests. As noted above, not all of the regulations interpreting § 1253(h) are perfectly applicable to article 3(a).3 42 However, this is no reason to foreclose courts from employing the applicable provisions of 8 C.F.R. § 208.16, namely subsection (b)(2), in future extradition cases when an article 3(a) defense to extradition is asserted.

C. The Discovery Presumptions Awarded to Smyth Were Sufficient to Establish an Article 3(a) Defense to Extradition During the district court proceedings, the United Kingdom failed to cooperate with certain discovery requests. In response, the district court awarded Smyth two rebuttable presumptions shifting the burden of pro- duction onto the United Kingdom. 343 The Ninth Circuit held that these presumptions established that Smyth would be subject to retribution upon return to Northern Ireland, but that the presumptions failed to establish that this punishment would be on account of the four forbidden factors.344

340. INS v. Stevic, 467 U.S. 407, 430 (1984). 341. Supplementary Treaty, supra note 1, at 16. 342. See supra notes 328-31 and accompanying text. 343. See supra notes 252-54. 344. In re Requested Extradition of Smyth, 61 F.3d 711, 721 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 1997 Compromise Between Outrage and Compassion 629

Furthermore, the panel held that the district court improperly shifted the burden of proof from Smyth to the United Kingdom "in contravention of 345 the treaty provision." The Ninth Circuit's assertion that the presumptions awarded to Smyth failed to address the proper elements of article 3(a) has been attacked as "just plain wrong, and inexplicably so."346 Although the district court might have been clearer in drafting the presumptions, the unambiguous import of these presumptions is that Catholic Irish republicans are subjected to harm and retaliation as a result of their race, religion, nationality and political views.347 Judge Reinhardt argued that any reading contrary to this "amounts to a flagrant disregard of its clear meaning as well as an unwarranted insistence on pedantry."348 He went even further to argue that, following the majority's approach, "the statement, 'under Hider, Jews in Germany were systematically subjected to enslavement and execution,' would not mean thatJews were persecuted on account of their religion."349 The Ninth Circuit's demands of precision can be used to subvert even the clearest of statements. For example, in concluding its decision, the panel stated, "[W]e conclude that the evidence was insufficient to support a finding that Smyth would face mistreatment in prison on account of his political or religious beliefs."350 Holding the Ninth Circuit to its own rigorous standards, a court deciding a 3(a) extradition issue after Smyth could assert that this statement does not sufficiently determine whether or not James Smyth has made a valid article 3(a) defense because that court has not determined whether or not Smyth would face mistreatment in prison because of his race or nationality. Such a ruling would, of course, miss the clear meaning of the Ninth Circuit's statement, just as the Ninth Circuit missed the unambiguous import of the presumptions awarded to Smyth. The Ninth Circuit has also been criticized for holding that the district court improperly shifted the burden of proof from Smyth to the government.351 According to rule thirty-seven of the Federal Rules of Civil Proce- dure, a district court may take "appropriate actions" against a party that fails to comply with the court's discovery orders.352 In Henry v. Gill Indus- tries, Inc.,353 the court held that dismissal of a case was an appropriate sanction. Since the treaty neither explicitly nor implicitly infringes on the right of the district court to enforce its orders by appropriate sanctions, it appears that the Ninth Circuit's holding that the district court lacked the

345. Id. 346. In re Requested Extradition of Smyth, 72 F.3d 1433, 1438 (9th Cir. 1996) (dissenting opinion), cert. denied, 116 S. Ct. 2258 (1996). 347. Id. 348. Id. at 1439. 349. Id. 350. In re Requested Extradition of Smyth, 61 F.3d 711, 722 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). 351. In re Requested Extradition of Smyth, 72 F.3d 1433, 1437 (9th Cir. 1996) (dissenting opinion), cert. denied, 116 S. Ct. 2258 (1996). 352. FED. R. CIrv. P. 37. 353. Henry v. Gill Industries, Inc., 983 F.2d 943, 949 (9th Cir. 1993). Cornell InternationalLaw Journal Vol. 30

authority to award rebuttable presumptions as a discovery sanction contra- 5 4 venes the Federal Rules of Civil Procedure.3

Conclusion It is imperative to reiterate that it has not been my intention to determine the validity of James Smyth's article 3(a) defense to extradition. Such a fact-intensive determination must be made within a courthouse, not within the pages of a law journal. However, the Ninth Circuit's flawed interpretation of article 3(a) does not comport with legislative intent, prior judicial interpretation of article 3(a), or with the similarly worded 8 U.S.C. § 1253(h). As a result of this flawed interpretation, James Smyth was denied a full opportunity to properly present his article 3(a) defense to extradition. Future courts facing article 3(a) defenses to extradition should be careful to avoid repeating these mistakes. Although it is too late for James Smyth to benefit from a better interpretation of article 3(a), other U.S. courts should consider the mistakes of the Ninth Circuit before blindly following the precedent set by Smyth.

354. In re Requested Extradition of Smyth, 72 F.3d 1433, 1437 (9th Cir. 1996) (dissenting opinion), cert. denied, 116 S. Ct. 2258 (1996).